Opinion
No. CIV S-07-2087 GEB EFB P.
October 10, 2007
ORDER
Petitioner, a prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254.
A petitioner seeking a writ of habeas corpus either must pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or request leave of court to proceed in forma pauperis. 28 U.S.C. § 1915(a).
Petitioner has neither paid the fee nor submitted a completed application for leave to proceed in forma pauperis. In order to submit a completed application to proceed in forma pauperis, petitioner must submit an application that has the certificate portion filled in, together with a certified copy of petitioner's inmate trust account statement for the six-month period immediately preceding the filing of the petition.
Petitioner has named as respondents the State of California and the Attorney General of the State of California. A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent the State and the attorney general as respondents yet they do not have custody over petitioner. Petitioner has not named the proper respondent.
Accordingly, IT IS HEREBY ORDERED that:
1. Within 30 days from the day this order is served, petitioner may submit either the filing fee or the completed application required by section 1915(a). Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis.
2. The October 4, 2007, petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.
So ordered.