Harrell v. Pollard
- Proceeding
- original
- Outcome
- other — Accordingly, in order to conform with the requirements of Rule 2(a) 27 of the Rules Governing § 2254 Cases and to avoid changing the Respondent again if 28 Petitioner is t
- Area
- civil
- Panel
- Allison H. Goddard (author)
Analysis
The court reviewed a pro se state prisoner's petition for a writ of habeas corpus and noted that the petitioner had been transferred from the prison where the originally named respondent was warden. The court sua sponte ordered the substitution of the Secretary of the California Department of Corrections and Rehabilitation as the respondent.
| What the court decided | The model |
|---|---|
Substitution of Respondent“the Court hereby sua sponte ORDERS the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation, as Respondent in place of “Marcus Pollard.”” | agree with court The decision follows from the legal requirement that a habeas petition must be directed to the immediate custodian of the prisoner. Because the petitioner was transferred, the original respondent was no longer the custodian. Substituting the Secretary of the Department of Corrections and Rehabilitation is a standard procedural mechanism to ensure the petition remains viable despite future transfers, as supported by the cited Ninth Circuit authority. |
The order itself: sound — The order correctly identifies the procedural issue (change of custody) and applies the appropriate statutory and circuit authority to resolve it. The reasoning is concise and directly addresses the need to conform the petition to Rule 2(a) requirements.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEREK D. HARRELL, Case No.: 3:21-cv-00255-JLS-AHG 12 Petitioner, ORDER SUA SPONTE 13 v. SUBSTITUTING RESPONDENT 14 KATHLEEN ALLISON, Secretary, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254 on February 9, 2021. ECF No. 1. At the time of filing, 19 Petitioner was apparently housed at R.J. Donovan State Prison and thus named Marcus 20 Pollard, Warden, as Respondent. Based on the notice of change of address Petitioner 21 submitted to the Court on September 21, 2021, it appears Petitioner is no longer housed at 22 R.J. Donovan State Prison; rather, he is presently incarcerated at Folsom State Prison in 23 Represa, California. ECF No. 12. 24 A writ of habeas corpus acts upon the custodian of the state prisoner. See 28 U.S.C. 25 § 2242; Rule 2(a), 28 U.S.C. § 2254. Because Petitioner’s place of custody has changed, 26 so has his custodian. Accordingly, in order to conform with the requirements of Rule 2(a) 27 of the Rules Governing § 2254 Cases and to avoid changing the Respondent again if 28 Petitioner is transferred to another prison or paroled, the Court hereby sua sponte 1 |} ORDERS the substitution of Kathleen Allison, Secretary of the California Department of 2 ||Corrections and Rehabilitation, as Respondent in place of “Marcus Pollard.” See Ortiz- 3 || Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 4 || proceedings may be the chief officer in charge of state penal institutions). The Clerk of the 5 || Court will modify the docket to reflect “Kathleen Allison, Secretary” as respondent in place 6 |}of “Marcus Pollard.” 7 IT IS SO ORDERED. 8 || Dated: September 23, 2021 ; wormnH. Kavala Honorable Allison H. Goddard 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28