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Frederick Tellez v. __________

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 7, 2012

FREDERICK TELLEZ
v.
__________, WARDEN

The opinion of the court was delivered by: The Honorable Sheri Pym, United States Magistrate Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Sheri Pym, United States Magistrate Judge

Kimberly I. Carter n/a n/a

Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Petitioner: Attorneys Present for Respondent: n/a n/a Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Name Respondent On May 2, 2012, petitioner filed a Petition for Writ of Habeas Corpus by a Person State Custody under 28 U.S.C. § 2254. The petition fails to name a respondent.

A habeas petition filed pursuant to 28 U.S.C. § 2254 by a petitioner who is currently in custody under a state court judgment must name as respondent the state officer who has custody of the petitioner. Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004); 28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("If the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody."). Thus, "[t]he default rule is that the proper respondent is the warden of the facility where the prisoner is being held . . . ." Rumsfeld, 542 U.S. at 435; accord Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (as amended May 18, 1994) (the proper respondent to the habeas petition is "typically . . . the warden of the facility in which the petitioner is incarcerated"). The Circuit has held that the "[f]ailure to name the correct respondent destroys personal jurisdiction." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (as amended May 8, 1996); see also Stanley, 21 F.3d at 360.

Although it appears that petitioner is currently incarcerated at Calipatria State Prison, he does not name the warden of that institution -- or anyone else -- as the respondent.

Accordingly, the court hereby issues an ORDER TO SHOW CAUSE why the petition should not be dismissed for failure to name a proper respondent. Petitioner is ordered to file with the court a written response to the Order to Show Cause on or May 28, 2012.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 12-3788-GW (SP)

Date May 7, 2012

FREDERICK TELLEZ v. __________, Warden

In his response to the Order to Show Cause, petitioner may set forth any reasons wishes to argue against the dismissal of the action. Alternatively, petitioner may file a response in which he identifies the name of the proper respondent and requests the court to deem the petition amended to name the person he identifies as the respondent. Fed. R. Civ. P. 15. Whichever option petitioner selects, petitioner must file and serve the responding document no later than May 28, 2012.

The court warns petitioner that failure to timely file and serve a response as directed in this Order will result in a recommendation that this action be dismissed without prejudice for failure to name a proper respondent, for failure to prosecute, for failure to obey court orders.

20120507

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