United States District Court, E.D. California
ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO
AMEND THE PETITION AND NAME A PROPER RESPONDENT ORDER TO SHOW
is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
Leave to Amend Petition to Name a Proper Respondent
case, Petitioner names “Fresno County Superior
Court” as the Respondent. It is insufficient to name
“Fresno County Superior Court” as the Respondent.
A petitioner seeking habeas corpus relief under 28 U.S.C.
§ 2254 must name the state officer having custody of him
as the respondent to the petition. Rule 2(a), Rules Governing
Section 2254 Cases; 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). Normally, the
person having custody of an incarcerated petitioner is the
warden of the prison in which the petitioner is incarcerated.
Smith v. Idaho, 392 F.3d 350, 355 (9th Cir. 2004);
Stanley, 21 F.3d at 360. However, the chief officer
in charge of state penal institutions is also appropriate.
Ortiz-Sandoval, 81 F.3d at 894; Stanley, 21
F.3d at 360.
failure to name a proper respondent requires dismissal of his
habeas petition for lack of personal jurisdiction.
Stanley, 21 F.3d at 360. However, the Court will
give Petitioner the opportunity to cure this defect by
amending the petition to name a proper respondent, such as
the warden of his facility or the chief officer in charge of
state penal institutions. See Dubrin v. California,
720 F.3d 1095, 1100 (9th Cir. 2013) (petitioner should be
granted leave to amend petition to name proper respondent).
In the interests of judicial economy, Petitioner need not
file an amended petition. Instead, Petitioner may file a
motion entitled “Motion to Amend the Petition to Name a
Proper Respondent” wherein Petitioner may name the
proper respondent in this action.
it appears that Petitioner has failed to exhaust his claim in
the instant petition. A petitioner in state custody who is
proceeding with a petition for writ of habeas corpus must
exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).
The exhaustion doctrine is based on comity to the state court
and gives the state court the initial opportunity to correct
the state’s alleged constitutional deprivations.
Coleman v. Thompson, 501 U.S. 722, 731 (1991);
Rose v. Lundy, 455 U.S. 509, 518 (1982). A
petitioner can satisfy the exhaustion requirement by
providing the highest state court with a full and fair
opportunity to consider each claim before presenting it to
the federal court. O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364,
365 (1995); Picard v. Connor, 404 U.S. 270, 276
Petitioner has not sought relief in the California Supreme
Court, the Court cannot proceed to the merits of those
claims. 28 U.S.C. § 2254(b)(1). In the instant petition,
Petitioner states that he sought collateral review in the
California Superior Court and the California Court of Appeal.
(ECF No. 1 at 3-4). However, Petitioner states that he has not
sought relief in the California Supreme Court. (ECF No. 1 at
4, 6). Accordingly, Petitioner is HEREBY ORDERED to SHOW
CAUSE within THIRTY (30) days of the date of
service of this order why the petition should not be
dismissed without prejudice for failure to exhaust state
IT IS HEREBY ORDERED that:
1. Petitioner is GRANTED THIRTY (30) days
from the date of service of this order in which to file a
motion to amend the petition to name a proper respondent; and
2. Petitioner is ORDERED to SHOW CAUSE within THIRTY
(30) days from the date of service of this order why
the petition should not be dismissed for failure to exhaust
is forewarned that failure to follow this order may result in
dismissal of the petition pursuant to Federal Rule of Civil
Procedure 41(b) (a petitioner’s failure to prosecute or