Opinion
20cv1042-MMA (MSB)
07-12-2021
DONALD R. LEWIS, Petitioner, v. KATHLEEN ALLISON, Secretary, Respondent.
ORDER SUA SPONTE SUBSTITUTING RESPONDENT
Honorable Michael S. Berg United States Magistrate Judge
On June 25, 2020, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming the Warden of the facility where he was incarcerated as Respondent, along with the California Attorney General as an additional Respondent. (ECF No. 3.) On July 9, 2021, Petitioner notified the Court that he had been transferred to the San Quentin State Prison. (ECF No. 35.)
A writ of habeas corpus acts upon the custodian of the state prisoner. 28 U.S.C. § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner's place of custody has changed, so has the Respondent to this action. To conform with the requirements of Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent if Petitioner is transferred again, the Court hereby sua sponte orders the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation, as Respondent in place of Stuart Sherman. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be the chief officer in charge of state penal institutions). Additionally, the Attorney General of the State of California is not a proper respondent in this action. Rule 2 of the Rules following § 2254 provides that the state officer having custody of the petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. However, “[i]f the petitioner is not yet in custody - but may be subject to future custody - under the state-court judgment being contested, the petition must name as respondents both the officer who has current custody and the attorney general of the state where the judgement was entered.” Rule 2 (b), 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to have named the Attorney General as a respondent in this action.
The Court HEREBY ORDERS the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation as Respondent in place of Warden Pickett and the California Attorney General. The Clerk of the Court will modify the docket to reflect “Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation, ” in place of the former respondents.
IT IS SO ORDERED.