The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PETITIONER'S
MOTION TO AMEND THE PETITION TO ) CHANGE THE NAME OF RESPONDENT
ORDER DIRECTING THE CLERK TO
CHANGE THE NAME OF THE RESPONDENT
TO MATTHEW CATE, SECRETARY OF THE
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION
ORDER REQUIRING RESPONDENT TO
FILE A RESPONSE TO THE PETITION
(Docs. 13, 1)
ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on October 9, 2012 (doc. 11).
Pending before the Court are Petitioner's motion to amend the petition to name a proper respondent (doc. 13), and the petition filed on September 14, 2012 (doc. 1).
I. Petitioner's Motion to Amend the Petition to Name an Appropriate Respondent Pending before the Court is the motion of Petitioner to amend the petition to name as Respondent Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR). Petitioner filed the motion pursuant to the suggestion of the Court in its order of October 11, 2012, in which the Court granted leave to Petitioner to amend the petition.
The proper respondent to a habeas petition is the person who has custody over the petitioner. 28 U.S.C. §§ 2242, 2243. The statutes contemplate a proceeding against a person who has the immediate custody of the prisoner and the power to produce the body of the prisoner. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). The Habeas Rules do not expressly specify the warden of the petitioner's custodial institution as the proper respondent. However, the Advisory Committee Note to Habeas Rule 2 indicates that the warden and the chief officer in charge of the state penal institutions are appropriately considered as the state officer having custody.
Naming the California Director of Corrections in place of the warden of the institution where a petitioner is housed does not deprive the court of personal jurisdiction over the respondent where the petitioner is a state prisoner bringing a challenge to a conviction sustained within the jurisdiction of the California Department of Corrections. Ortiz-Sandoval v.
Gomez, 81 F.3d 891, 894-95 (9th Cir. 1996). Whether a state official has custody of a prisoner and has the power to produce a prisoner depends in part upon the penal system of the state in question. Id. at 895. In Ortiz-Sandoval v. Gomez, the court found significant the fact that both the warden of a California prison and California's Director of Corrections had the power to produce the prisoner; both might receive service of process; and the laws of the state put the custody of the prisoner in the director. The court concluded that under those circumstances, in cases where a prisoner has been transferred or where his immediate custodian has otherwise been put in doubt, the Director of Corrections serves as an effective respondent and eliminates procedural roadblocks to resolution on the merits. Id. at 896.
As of July 1, 2005, Cal. Pen. Code § 5050 abolished the office of the Director of Corrections and provided that any reference to the Director of Corrections in any code refers to the Secretary of the California CDCR.
The Court therefore concludes that Matthew Cate, Secretary of the CDCR, is an appropriate respondent in this action, and that he should be substituted as Respondent.
II. A Response to the Petition
The Court has conducted a preliminary review of the petition. It is not clear from the face of the petition whether Petitioner is entitled to relief. 28 U.S.C. § 2243.
Accordingly, pursuant to Habeas Rule 4 and Rule 16 of the Federal Rules of Civil Procedure, *fn1 the Court will direct the filing of a response, set a briefing schedule, ...