Opinion
No. CIV S-07-2467 LEW DAD P.
January 3, 2008
ORDER
On November 28, 2007, this court issued an order dismissing petitioner's original petition for writ of habeas corpus because he failed to name the proper respondent. In the same order, the court instructed petitioner to clarify in his amended petition the name and location of the court that entered the judgment of conviction which he seeks to attack. In his original petition, petitioner listed "Superior Court of California — Sacramento County/San Francisco County."
Petitioner has filed two amended petitions. On December 6, 2007, petitioner filed an amended petition attacking the judgment of conviction in Sacramento County and naming Steve Moore, Warden of Deuel Vocational Institute, as the respondent. Warden Moore is the proper respondent in this action. Accordingly, the case will proceed on petitioner's December 6, 2007 amended petition, and the Clerk of the Court will be directed to amend the docket to reflect Warden Moore as the respondent.
On December 19, 2007, petitioner filed an amended petition attacking the judgment of conviction in San Francisco County. The court will strike this amended petition because, while both this Court and the United States District Court in the district where petitioner was convicted have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner's application are more readily available in San Francisco County. Id. at 499 n. 15; 28 U.S.C. § 2241(d). Petitioner is advised that if he wishes to collaterally attack the judgment of conviction entered against him in the San Francisco County Superior Court, he should file his federal habeas petition challenging that conviction in the United States District Court for the Northern District of California.
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's December 6, 2007 amended habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent is directed to file a response to petitioner's December 6, 2007 amended habeas petition within thirty days from the date of this order. See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition.See Rule 5, Fed.R. Governing § 2254 Cases;
2. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
3. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fifteen days thereafter;
4. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's December 6, 2007 amended habeas petition on Michael Patrick Farrell, Senior Assistant Attorney General;
5. The Clerk of the Court shall amend the docket to reflect Warden Steve Moore as the respondent in this action; and
6. Petitioner's December 19, 2007 amended petition is stricken.