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 ) (Doc. 8) ) ORDER DIRECTING THE CLERK TO ) CHANGE THE NAME OF THE RESPONDENT )) ORDER DISCHARGING ORDER TO SHOW ) CAUSE (Doc. 7) ORDER DIRECTING PETITIONER TO WITHDRAW HIS UNEXHAUSTED CLAIMS WITHIN THIRTY (30) DAYS OF SERVICE OR SUFFER DISMISSAL OF THE ACTION DEADLINE: THIRTY (30) DAYS
Petitioner is proceeding pro se and in forma pauperis 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 May 22, 2012 (doc. 4).
Pending before the Court are 1) Petitioner's motion to amend the petition to name a proper respondent, and 2) Petitioner's response to the Court's order to show cause why the petition should not be dismissed for failure to exhaust state court remedies.
I. Motion to Amend the Petition to Name a Respondent Pending before the Court is Petitioner's motion to amend the petition to name a proper respondent, filed on July 13, 2012, in response to the Court's order of April 23, 2012, granting Petitioner leave to file the motion.
Petitioner requests that M. D. Biter, Warden of the Kern Valley State Prison where Petitioner is incarcerated, be named as Respondent in this matter.
A petitioner seeking habeas relief must name the state officer having custody of him or her as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). Generally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Therefore, Petitioner's request will be granted.
II. Discharge of the Order to Show Cause
On April 23, 2012, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for Petitioner's failure to exhaust state remedies with respect to his claims. The order was served by mail on Petitioner on the same date.
On July 13, 2012, after receiving an extension of time to file his response, Petitioner filed a response to the order to show cause which the Court deems timely.
Accordingly, the order to show cause will be discharged.
III. Failure to Exhaust State Court Remedies as to Some
Petitioner alleges that he is an inmate of the Kern Valley State Prison (KVSP) serving a sentence of fifty-four years to life imposed in the Tulare County Superior Court in June 2009 for attempted murder with gang and gun enhancements. (Pet. 2.) Petitioner raised the following claims in the petition: 1) the trial court abused its discretion in denying Petitioner's motion to sever counts 1 and 2 from counts 3 through 7 because counts 3 through 7 were not eligible for joinder under Cal. Pen. Code § 954; 2) the failure to sever and the introduction of inflammatory gang predicate evidence violated Petitioner's right to due process and a fair trial; 3) the prosecutor committed prejudicial misconduct by vouching for two key prosecution witnesses and impeaching a defense witness with a non-existent criminal offense, which violated Petitioner's Fourteenth Amendment right to due process and a fair trial; 4) trial counsel's failure to impeach witness Rodriguez with prior convictions, request an instruction limiting use of the evidence of gang activity, object to the court's directions regarding gang expert testimony, object on the basis of due process and pursuant to Cal. Evid. Code § 352 to predicate crime gang evidence, request an in-custody protective instruction, object and request admonitions concerning various instances of prosecutorial misconduct, impeach witness Rodriguez with prior convictions, request a prophylactic gang evidence instruction, object to unspecified, related misinstructions, challenge inflammatory gang evidence, and request an instruction to prevent ...