United States District Court, C.D. California
DARRYL D. MCGHEE, Petitioner,
STATE OF CALIFORNIA, Respondent.
ORDER DISMISSING FIRST AMENDED PETITION WITH LEAVE TO
HONORABLE S. JAMES OTERO UNITED STATES DISTRICT JUDGE
October 10, 2017, petitioner filed a Petition for Writ of
Habeas Corpus in the Eastern District of California. On
February 9, 2018, petitioner filed a First Amended Petition
for Writ of Habeas Corpus (“First Amended
Petition” or “FAP”) in the Eastern District
of California. On April 4, 2018, the matter was
transferred to the Central District of California and
subsequently assigned to this Court for adjudication. As the
operative First Amended Petition is deficient in at least the
following respects, it is dismissed with leave to amend.
the First Amended Petition has not been submitted on either
the national form appended to the current Rules Governing
Section 2254 Cases in the United States District Courts (the
“Habeas Rules”) or the form currently approved by
the Central District of California for habeas petitions.
See Local Rule 83-16; Rule 2(d) of the Habeas Rules.
It is important to utilize the approved form, because, among
other reasons, the approved form calls for specific
information regarding whether individual claims have been
presented to and resolved by the highest state court,
i.e., whether they have been exhausted, as discussed
the First Amended Petition improperly names the State of
California as a Respondent. See Morehead v. State of
California, 339 F.2d 170, 171 (9th Cir. 1964) (State of
California incorrectly named as respondent). To the extent
petitioner is in physical custody, an appropriate respondent
is the state officer who has custody (i.e., a prison
warden at the facility where petitioner may currently be
housed). See Rumsfeld v. Padilla, 542 U.S. 426, 439
(2004); see also 28 U.S.C. § 2242; Rule 2 of
the Habeas Rules and the Advisory Committee Notes thereto. To
the extent petitioner is out on parole due to a state
judgment he is attacking, the proper respondents are the
particular parole officer responsible for supervising the
petitioner and the official in charge of the parole agency,
or the state correctional agency, as appropriate.
See Advisory Committee Notes to Rule 2 of the Habeas
Rules. The failure to name the correct respondent destroys
personal jurisdiction. See Ortiz-Sandoval v. Gomez,
81 F.3d 891, 894 (9th Cir. 1996).
the First Amended Petition improperly appears to challenge
multiple judgments - a March 2012 judgment in San Bernardino
County Superior Court (“San Bernardino
Judgment”), a “new case” in California, and
a “new case” in Florida - as well as the
terms/conditions of the parole petitioner is apparently
currently serving in connection with the San Bernardino
Judgment. (FAP at 2). A federal habeas petition may challenge
only a single judgment. See Rule 2(e) of the Habeas
Rules (“A petitioner who seeks relief from judgment of
more than one state court must file a separate petition
covering the judgment or judgments of each court.”).
to the extent petitioner challenges the San Bernardino
Judgment, this Court is without jurisdiction to consider the
First Amended Petition because it is successive
(i.e., petitioner previously filed a federal
petition challenging the San Bernardino Judgment which was
resolved on the merits),  and the record does not reflect that
the United States Court of Appeals for the Ninth Circuit has
authorized petitioner to file a second or successive petition
challenging the same judgment.Absent authorization from the
Ninth Circuit or a new and intervening judgment, petitioner
may not bring another habeas petition challenging the San
Bernardino Judgment in this Court. See 28 U.S.C.
§ 2244; see also Burton v. Stewart, 549 U.S.
147, 152-53 (2007); Cooper v. Calderon, 274 F.3d
1270, 1274 (9th Cir. 2001) (per curiam) (citation omitted),
cert. denied, 538 U.S. 984 (2003).
pursuant to 28 U.S.C. § 2254(b)(1), habeas relief may
not be granted unless a petitioner has exhausted the remedies
available in the state courts.Exhaustion requires that the
petitioner's contentions were fairly presented to the
state courts, Ybarra v. McDaniel, 656 F.3d 984, 991
(9th Cir. 2011), cert. denied, 568 U.S. 959 (2012),
and disposed of on the merits by the highest court of the
state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th
Cir. 2002). As a matter of comity, a federal court will not
entertain a habeas petition unless the petitioner has
exhausted the available state judicial remedies on every
ground presented in it. See Rose v. Lundy, 455 U.S.
509, 518 (1982). Petitioner has the burden of demonstrating
he has exhausted available state remedies. See,
e.g., Williams v. Craven, 460 F.2d 1253, 1254
(9th Cir. 1972) (per curiam); Rollins v. Superior
Court, 706 F.Supp.2d 1008, 1011 (C.D. Cal. 2010). In
this case, the First Amended Petition does not reflect that
any of petitioner's claims have been presented to and
resolved by the highest state court. Indeed, the First Amended
Petition suggests that petitioner's claims have not yet
been exhausted because petitioner concurrently
“presented his grounds to the San Bernardino County
Superior Court[.]” (FAP at 7).
light of the foregoing, IT IS HEREBY ORDERED:
First Amended Petition is dismissed with leave to
plaintiff still wishes to pursue this matter, he shall file a
Second Amended Petition within twenty (20) days of the date
of this Order which cures the defects set forth
herein. The Clerk is directed to provide plaintiff
with a Central District of California Petition for Writ of
Habeas Corpus by a Person in State Custody Form (CV-69), to
facilitate plaintiffs filing of a Second Amended Petition if
he elects to proceed in that fashion.
the event petitioner elects not to proceed with this action,
he shall sign and return the attached Notice of Dismissal by
the foregoing deadline which will result in the voluntary
dismissal of this action without prejudice.
Petitioner is cautioned that, absent further order of the
Court, petitioner's failure timely to file a Second
Amended Petition or Notice of Dismissal may result in the
dismissal of this action.