BURK v. PEOPLE

Full title: MELVIN TODD BURK, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, et…

Court: United States District Court, E.D. California

Date published: Oct 8, 2008

No. CIV S-08-1916 DAD P (E.D. Cal. Oct. 8, 2008)

Opinion

No. CIV S-08-1916 DAD P.

October 8, 2008

ORDER

DALE DROZD, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, petitioner has not named the proper respondent. "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Petitioner has instead named the People of the State of California as the respondent in this action. Therefore, the petition will be dismissed and petitioner will be granted leave to file an amended petition. Petitioner should name the warden of the facility where he is incarcerated as the respondent. See Stanley, 21 F.3d at 360.

On September 22, 2008, the court ordered petitioner to file an application requesting leave to proceed in forma pauperis. Petitioner did not file the application with his habeas petition. Petitioner will be provided a final opportunity to do so. Petitioner is advised that for a habeas action, the certificate portion of the in forma pauperis application does not need to be completed and petitioner does not need to submit a certified copy of his inmate trust account statement.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Within thirty days from the date of service of this order, petitioner shall file his application requesting leave to proceed in forma pauperis on the form provided by the court;

2. Petitioner's petition, filed on September 23, 2008 (Doc. No. 5), is dismissed;

3. Within thirty days from the date of service of this order, petitioner shall file his amended petition on the form provided by the court; the amended petition must comply with the requirements of the Federal Rules of Civil Procedure; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;"

3. The Clerk of the Court is directed to send petitioner the form petition for a writ of habeas corpus by a state prisoner and the application requesting leave to proceed in forma pauperis by a prisoner; and

4. Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.