Lewis v. Unknown
- Proceeding
- district
- Area
- civil
- Panel
- Michael S. Berg (author)
Analysis
The court reviewed a pro se state prisoner's habeas corpus petition after the petitioner was transferred to a new facility. The court ordered the substitution of the Secretary of the California Department of Corrections and Rehabilitation as the sole respondent, removing the former Warden and the California Attorney General.
| What the court decided | The model |
|---|---|
Substitution of Respondent“The Court HEREBY ORDERS the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation as Respondent in place of Warden Pickett and the California Attorney General.” | agree with court The court correctly applied Rule 2(a) of the Rules Governing § 2254 Cases, which requires the petition to be directed to the custodian. By substituting the Secretary of the CDCR, the court ensured the respondent would remain constant despite future transfers, a standard practice in the Ninth Circuit to avoid procedural delays. The removal of the Attorney General was also correct because the petitioner is currently in custody, not merely subject to future custody. |
The order itself: sound — The order is procedurally sound. It correctly identifies the legal requirement to name the current custodian and applies the Ninth Circuit precedent allowing the Secretary of the Department of Corrections to be named to prevent the need for repeated substitutions upon transfer. The reasoning for excluding the Attorney General is also legally accurate under Rule 2.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD R. LEWIS, Case No.: 20cv1042-MMA (MSB)
12 Petitioner, ORDER SUA SPONTE 13 v. SUBSTITUTING RESPONDENT 14 KATHLEEN ALLISON, Secretary, 15 Respondent. 16 17 On June 25, 2020, Petitioner, a state prisoner proceeding pro se, filed a Petition for 18 a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming the Warden of the facility 19 where he was incarcerated as Respondent, along with the California Attorney General as 20 an additional Respondent. (ECF No. 3.) On July 9, 2021, Petitioner notified the Court that 21 he had been transferred to the San Quentin State Prison. (ECF No. 35.) 22 A writ of habeas corpus acts upon the custodian of the state prisoner. 28 U.S.C. 23 § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner’s place of custody has 24 changed, so has the Respondent to this action. To conform with the requirements of Rule 25 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent if 26 Petitioner is transferred again, the Court hereby sua sponte orders the substitution of 27 Kathleen Allison, Secretary of the California Department of Corrections and 28 Rehabilitation, as Respondent in place of Stuart Sherman. See Ortiz-Sandoval v. Gomez, 1 || 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be 2 || the chief officer in charge of state penal institutions). Additionally, the Attorney General 3 the State of California is not a proper respondent in this action. Rule 2 of the Rules 4 following § 2254 provides that the state officer having custody of the petitioner shall be 5 ||named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. However, “[i]f the petitioner is 6 yet in custody — but may be subject to future custody — under the state-court judgment 7 || being contested, the petition must name as respondents both the officer who has current 8 ||custody and the attorney general of the state where the judgement was entered.” Rule 2 9 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to have named the Attorney 10 || General as a respondent in this action. 11 The Court HEREBY ORDERS the substitution of Kathleen Allison, Secretary of 12 ||the California Department of Corrections and Rehabilitation as Respondent in place of 13 || Warden Pickett and the California Attorney General. The Clerk of the Court will modify 14 ||the docket to reflect “Kathleen Allison, Secretary of the California Department of 15 || Corrections and Rehabilitation,” in place of the former respondents. 16 IT IS SO ORDERED. 17 ||Dated: July 12, 2021 7 SAL 18 4 □ <—{—— 19 Honorable Michael S. Berg United States Magistrate Judge 20 21 22 23 24 25 26 27 28