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Irving v. People

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-1621-LKK-CMK-P (E.D. Cal. Feb. 28, 2006)

Opinion

No. CIV S-05-1621-LKK-CMK-P.

February 28, 2006


ORDER


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 13, 2005, the court issued findings and recommendations that the petition be summarily dismissed for lack of exhaustion. Specifically, the court concluded that petitioner had not presented any of his claims to the highest state court. Upon further review of the petition, and in light of documents submitted to the court by petitioner on January 12, 2006, and February 8, 2006, it appears that petitioner has in fact presented his claims to the California Supreme Court via a petition for review which was denied on July 14, 2004. The December 13, 2005, findings and recommendations will, therefore, be vacated.

The petition continues to suffer from a defect not originally identified in the December 13, 2005, findings and recommendations. "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); see also Rule 2(a), Federal Rules Governing Section 2254 Cases. Because petitioner has not named the appropriate state officer, the petition must be dismissed with leave to amend to name the correct respondent. See Stanley, 21 F.3d at 360. Petitioner is warned that failure to comply with this order may result in the dismissal of this action. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations issued on December 13, 2005, are vacated;

2. Petitioner's petition for writ of habeas corpus is dismissed with leave to amend;

3. Petitioner shall file an amended petition on the form employed by this court, and which names the proper respondent and states all claims and requests for relief, within 30 days of the date of this order; and

4. The Clerk of the Court is directed to send petitioner the court's form habeas corpus application.


Summaries of

Irving v. People

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-1621-LKK-CMK-P (E.D. Cal. Feb. 28, 2006)
Case details for

Irving v. People

Case Details

Full title:BOYDD DEMETRIUS IRVING, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA…

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

Date published: Feb 28, 2006

Citations

No. CIV S-05-1621-LKK-CMK-P (E.D. Cal. Feb. 28, 2006)