Martinez 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 JOAQUIN M. MARTINEZ, Case No. 3:21-cv-02106-JLS-BGS 12 Plaintiff, ORDER: 13 v. (1) SUA SPONTE SUBSTITUTING 14 KATHLEEN ALLISON, Secretary, et al., RESPONDENT; 15 Defendants. (2) REQUIRING RESPONSE TO 16 PETITION (28 U.S.C. § 2254) 17 18 On December 17, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1.) On 20 January 3, 2022, the Court dismissed the action without prejudice and with leave to amend 21 because Petitioner had failed to either pay the filing fee or file a motion to proceed in forma 22 pauperis and because he had failed to name a proper respondent. (ECF No. 3.) Petitioner 23 was given until March 7, 2022, to either pay the $5.00 filing fee or submit adequate proof 24 of his inability to pay the fee and file a First Amended Petition that cured the pleading 25 deficiencies outlined in the Court’s Order. (Id.) 26 On May 23, 2022, Petitioner filed an Amended Petition (“Am. Pet.”) and a Motion 27 to Proceed in Forma Pauperis. (ECF Nos. 5–6.) On June 10, 2022, the Court granted 28 Petitioner’s Motion to Proceed in Forma Pauperis and dismissed the Petition without 1 prejudice because Petitioner had not alleged he had exhausted his state court remedies. 2 (ECF No. 7.) Petitioner was given until August 1, 2022 to file a Second Amended Petition. 3 (Id.) On July 14, 2022,1 Petitioner constructively filed a Second Amended Petition 4 (“SAP”). (ECF No. 8.) 5 As an initial matter, based on the return address on Petitioner’s Second Amended 6 Petition, it appears Petitioner is now housed at California State Prison, Sacramento. (See 7 ECF No. 8 at 1.) A writ of habeas corpus acts upon the custodian of the state prisoner. See 8 28 U.S.C. § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner’s place of custody 9 has changed, so has his custodian. Accordingly, in order to conform with the requirements 10 of Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent 11 again if Petitioner is transferred to another prison or paroled, the Court hereby sua sponte 12 substitutes Kathleen Allison, Secretary of the California Department of Corrections and 13 Rehabilitation, as Respondent in place of “Allen, Warden.” See Ortiz-Sandoval v. Gomez, 14 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be 15 the chief officer in charge of state penal institutions). The Clerk of Court is ORDERED 16 to modify the docket to reflect “Kathleen Allison, Secretary” as respondent in place of 17 “Allen, Warden.” 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 24 1 Pursuant to the mailbox rule, the Court uses the date upon which the prisoner handed his 25 document for filing to prison authorities as the filing date. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a notice of appeal by a pro se prisoner is deemed filed at 26 the moment the prisoner delivers it to prison authorities for forwarding to the clerk of 27 court); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (applying Houston to 28 federal habeas corpus petitions). 1 Further, upon review of the Petition and in accordance with Rule 4 of the rules 2 governing petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, IT IS 3 ORDERED that: 4 1. The Clerk of this Court must promptly (a) serve a copy of the Petition and a copy 5 of this Order on the Attorney General for the State of California, or his authorized agent; 6 and (b) serve a copy of this Order on Petitioner. 7 2. Respondent must file a “Notice of Appearance” no later than October 17, 2022. 8 3. If Respondent contends the Petition can be decided without the Court’s reaching 9 the merits of Petitioner’s claims (e.g., because Respondent contends Petitioner has failed 10 to exhaust any state remedies as to any ground for relief alleged in the Petition, or that the 11 Petition is barred by the statute of limitations, or that the Petition is subject to dismissal 12 under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are procedurally 13 defaulted, or that Petitioner is not in custody), Respondent must file a motion to dismiss 14 pursuant to Rule 4 of the Rules Governing § 2254 no later than December 2, 2022. The 15 motion to dismiss must not address the merits of Petitioner’s claims, but rather must 16 address all grounds upon which Respondent contends dismissal without reaching the merits 17 of Petitioner’s claims is warranted. At the time the motion to dismiss is filed, Respondent 18 must lodge with the Court all records bearing on Respondent’s contention in this regard. 19 A hearing date is not required for the motion to dismiss. 20 4. If Respondent files a motion to dismiss, Petitioner must file his opposition, if any, 21 to the motion no later than January 6, 2023. At the time the opposition is filed, Petitioner 22 must lodge with the Court any records not lodged by Respondent which Petitioner believes 23 may be relevant to the Court’s determination of the motion. 24 5. Respondent may file a reply to Petitioner’s opposition to a motion to dismiss on 25 or before January 20, 2023. 26 6. If Respondent does not contend that the Petition can be decided without the Court 27 reaching the merits of Petitioner’s claims, Respondent must file and serve an answer to the 28 Petition, and a memorandum of points and authorities in support of such answer, pursuant 1 to Rule 5 of the Rules Governing § 2254 Cases no later than December 2, 2022. At the 2 time the answer is filed, Respondent must lodge with the Court all records bearing on the 3 merits of Petitioner’s claims. The lodgments must be accompanied by a notice of lodgment 4 which must be captioned “Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case 5 — To Be Sent to Clerk’s Office.” Respondent must not combine separate pleadings, orders 6 or other items into a combined lodgment entry. Each item must be numbered separately 7 and sequentially. 8 7. Petitioner may file a traverse to matters raised in the answer no later than 9 January 6, 2023. Any traverse by Petitioner (a) must state whether Petitioner admits or 10 denies each allegation of fact contained in the answer; (b) must be limited to facts or 11 arguments responsive to matters raised in the answer; and (c) must not raise new grounds 12 for relief that were not asserted in the Petition. Grounds for relief withheld until the traverse 13 will not be considered. No traverse can exceed ten (10) pages in length absent advance 14 leave of Court for good cause shown. 15 8. A request by a party for an extension of time within which to file any of the 16 pleadings required by this Order must be made at least seven (7) days in advance of the 17 due date of the pleading, and the Court will grant such a request only upon a showing of 18 good cause. Any such request must be accompanied by a declaration under penalty of 19 perjury explaining why an extension of time is necessary. 20 9. Unless otherwise ordered by the Court, this case will be deemed submitted on the 21 day following the date Respondent’s reply to a motion to dismiss is due or Petitioner’s 22 traverse is due. 23 10. Every document delivered to the Court must include a certificate of service 24 attesting that a copy of such document was served on opposing counsel (or on the opposing 25 party, if such party is not represented by counsel). Any document delivered to the Court 26 without a certificate of service will be returned to the submitting party and will be 27 disregarded by the Court. 28 /// 1 11. Petitioner must immediately notify the Court and counsel for Respondent of any 2 ||change of Petitioner’s address. If Petitioner fails to keep the Court informed of where 3 || Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute. 4 IT IS SO ORDERED. > || Dated: September 26, 2022 FE a. L x , 4 / 6 on. Bernard G. Skomal 7 United States Magistrate Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28