Opinion
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND
SHEILA K. OBERTO, Magistrate Judge.
SCREENING ORDER
On April 13, 2015, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented, in writing, to the jurisdiction of a United States Magistrate Judge to conduct all further proceedings in this case, including the entry of final judgment.
I. Preliminary Screening
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
II. Naming an Appropriate Respondent
Petitioner names the People of the State of California and CDCR (California Department of Corrections and Rehabilitation) as Respondents. Petitioner is incarcerated at California State Prison, Corcoran ("CSP-Corcoran"). The warden of CSP-Corcoran is Dave Davey.
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) of the Rules Governing § 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). Typically, a petitioner incarcerated in state prison names the warden of that prison as respondent. The chief officer in charge of California state penal institutions would also be an appropriate respondent. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Authority, 423 F.2d 1326, 1326 (9th Cir.), cert. denied, 398 U.S. 914 (1970).
III. Mischaracterized Claim
Petitioner sets forth ground one as "Removal of D.A. for Misconduct, " an action that is not cognizable as a ground for habeas relief. The supporting facts reveal, however, that Petitioner is not moving for removal of the deputy district attorney who prosecuted his case, but is alleging prosecutorial misconduct arising from the prosecutor's failure to disclose relevant favorable evidence. When amending his petition, as this order permits him to do, Petitioner should revise the designation of ground one to reflect his claim of prosecutorial misconduct or failure to disclose favorable evidence.
IV. Conclusion and Order
Accordingly, the Court hereby ORDERS:
1. The petition for writ of habeas corpus shall be dismissed with leave to amend for lack of jurisdiction.
2. The Clerk's Office shall send Petitioner a copy of this order and a form for Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.
3. Within thirty (30) days of service of this order, Plaintiff shall file an amended petition naming a proper respondent and re-characterizing his claim in ground one. Plaintiff shall also sign the amended petition under penalty of perjury.
4. If Plaintiff fails to file an amended petition within thirty (30) days from the date of service of this order, this action will be dismissed without further notice for lack of jurisdiction.
IT IS SO ORDERED. PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
(If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. § 2255, in the federal court which entered the judgment.)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Instructions-Read Carefully
(1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.
(2) If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.
(3) Upon receipt of a fee of $5 your petition will be filed if it is in proper order.
(4) If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a petition of this type, you may request permission to proceed in forma pauperis, in which event you must execute form AO-240 or other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state of in different states, you must file separate petitions as to each court.
(6) You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction.
(7) When the petition is fully completed, the original and at least two copies must be mailed to the Clerk of the United States District Court whose address is
(8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.