(HC)Uhuru v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, Case No.: 3:21-cv-1058-CAB-JLB 12 Petitioner, ORDER: (1) GRANTING 13 v. APPLICATION TO PROCEED IN FORMA PAUPERIS, AND (2) 14 PEOPLE OF THE STATE OF DISMISSING AMENDED PETITION CALIFORNIA, 15 WITHOUT PREJUDICE AND WITH Respondent. LEAVE TO AMEND 16 17 18 On May 24, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition for 19 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed 20 in forma pauperis in the United States District Court for the Eastern District of California. 21 (ECF Nos. 1 & 2.) On June 1, 2021, Petitioner filed a First Amended Petition and another 22 request to proceed in forma pauperis. (ECF Nos. 5 & 6.) Although the First Amended 23 Petition appears to be merely an exact copy of the original Petition, the court deems the 24 Amended Petition to be the operative pleading. 28 U.S.C. § 2242 (stating habeas petitions 25 “may be amended or supplemented as provided in the rules of procedure applicable to 26 civil actions”); see also Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once 27 as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to 28 which a responsive pleading is required, 21 days after service of a responsive pleading or 1 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”). The 2 United States District Court for the Eastern District of California transferred the action to 3 this Court on June 3, 2021. (ECF No. 8.) 4 APPLICATIONS TO PROCEED IN FORMA PAUPERIS 5 According to Petitioner’s trust account statement, Petitioner has no funds on 6 account at the California correctional institution in which he is presently confined. 7 Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner’s 8 applications to proceed in forma pauperis (ECF Nos. 2 & 6), and allows Petitioner to 9 prosecute the above-referenced action without being required to prepay fees or costs and 10 without being required to post security. The Clerk of the Court shall file the First 11 Amended Petition for Writ of Habeas Corpus without prepayment of the filing fee. 12 FAILURE TO NAME A PROPER RESPONDENT 13 Review of the First Amended Petition reveals that Petitioner has failed to name a 14 proper respondent. On federal habeas, a state prisoner must name the state officer having 15 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 16 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 17 when a habeas petition fails to name a proper respondent. See id. 18 The warden is the typical respondent. However, “the rules following section 2254 19 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 20 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 21 charge of state penal institutions.’” Id. (quoting Rules Governing § 2254, Rule 2(a), 28 22 U.S.C. foll. § 2254 advisory committee’s note). If “a petitioner is in custody due to the 23 state action he is challenging, ‘[t]he named respondent shall be the state officer who has 24 official custody of the petitioner (for example, the warden of the prison).’” Id. (quoting 25 Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note). 26 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 27 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 28 in custody. The actual person who is [the] custodian [of the petitioner] must be the 1 || respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 2 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 3 || person who will produce “the body” if directed to do so by the Court. “Both the warden 4 || of a California prison and the Director of Corrections for California have the power to 5 || produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 6 Here, Petitioner has incorrectly named “People of the State of California,” as 7 || Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner 8 name the warden in charge of the state correctional facility in which Petitioner is 9 || presently confined or the Secretary of the California Department of Corrections and 10 || Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per 11 || curiam). 12 CONCLUSION 13 Based on the foregoing, the Court GRANTS Petitioner’s requests to proceed in 14 || forma pauperis (ECF Nos. 2 & 6) and DISMISSES this action without prejudice and 15 || with leave to amend because Petitioner has failed to state name a proper respondent. To 16 this case reopened, Petitioner must, no later August 13, 2021, file a Second 17 || Amended Petition that cures the pleading deficiencies set forth above. A blank Second 18 || Amended Petition is included with this Order for Petitioner’s convenience. 19 IT IS SO ORDERED. 20 Dated: June 4, 2021 € ZL 21 Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 25 26 27 28