Opinion
No. CIV S-06-2208 FCD DAD P.
February 20, 2008
ORDER
Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 13, 2006, the court ordered petitioner to file an in forma pauperis application and an amended petition because his original petition was incomplete. Petitioner has filed both documents.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
However, petitioner's amended petition is once again defective. "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 named the Long Beach Superior Court as the respondent in this action. The state trial court is not a proper respondent in this action. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360. In his second amended petition, petitioner must name the warden of the facility where he is currently incarcerated.
From the amended petition before this court it appears that petitioner is seeking to challenge a 1987 conviction for second degree murder. (Am. Pet. at 2.) In addition, it appears that petitioner pled nolo contendere, was sentenced to a term of fifteen years to life imprisonment, appealed his conviction and subsequently filed state habeas petitions with the California Court of Appeal and the California Supreme Court. (Id. at 2-4.) However, beyond this information, there are several questions on the form petition that remain unanswered even in the amended petition before this court. In his second amended petition, petitioner must answer each question on the form petition. He must also clearly identify the claims that he presented to the state courts, the state courts' decisions and the dates of those decisions. In this regard, petitioner may attach a copy of the state court decisions to his petition.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. Petitioner's amended petition, filed on October 24, 2006, is dismissed with leave to file a second amended petition within thirty days from the date of this order;
3. The second amended petition must be filed on the form employed by this court, must name the proper respondent, must state all claims and prayers for relief on the form, and must provide an answer for each questions. It must bear the case number assigned to this action and must bear the title "Second Amended Petition"; and
4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.