BACKGROUND

19 Petitioner is currently confined at the Richard J. Donovan Correctional Facility. (ECF 20 No. 1 at 1).1 On August 13, 2021, Petitioner filed the instant federal habeas petition wherein he 21 appears to challenge the State Bar of California’s decision declining to take disciplinary action 22 against prosecutors involved in charging Petitioner in the Kings County Superior Court of a 23 violation of California Penal Code section 4501.5 (battery on a non-confined person by a 24 prisoner). (ECF No. 1). Petitioner argues that the State Bar of California “erroneously failed to 25 find that Petitioner[’s] criminal prosecution by the Kings County District Attorney’s Office is 26 part of an ongoing practice of systemic racism where meritorious evidence favorable to the 27 1 accused is intentionally lost and destroyed as a prosecuting strategy to secure convictions against 2 minority prisoners.” (Id. at 5). 3 On August 31, 2021, the Court ordered Petitioner to show cause why the petition should 4 not be dismissed based on Younger v. Harris, 401 U.S. 37 (1971), failure to exhaust state judicial 5 remedies, and failure to state a cognizable federal habeas corpus claim. (ECF No. 10). On 6 September 13, 2021, Petitioner filed his response. (ECF No. 11). 7 II. 8 DISCUSSION 9 The Rules Governing Section 2254 Cases in the United States District Courts2 requires 10 preliminary review of a habeas petition and allows a district court to dismiss a petition before the 11 respondent is ordered to file a response, if it “plainly appears from the petition and any attached 12 exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing 13 Section 2254 Cases in the United States District Courts (“Habeas Rules”), 28 U.S.C. foll. § 2254. 14 A. Order to Show Cause 15 In his response to the order to show cause, Petitioner states that he filed a habeas petition 16 in the California Supreme Court raising the same claims as the instant petition and argues that 17 Younger abstention is inappropriate because Petitioner’s allegations demonstrate that 18 extraordinary circumstances (i.e., prosecution undertaken by state officials in bad faith without 19 hope of obtaining a valid conviction) warrant federal intervention. The Court finds that 20 Petitioner’s response sufficiently addresses the Court’s concerns regarding abstention and 21 exhaustion such that summary dismissal is not warranted on these grounds. 22 Although Petitioner does not directly address how this Court has habeas jurisdiction over 23 Petitioner’s challenge to the State Bar of California’s decision declining to take disciplinary 24 action against prosecutors in the Kings County District Attorney’s Office, Petitioner’s response 25 appears to indicate that Petitioner would like to directly challenge his ongoing prosecution for 26 battery on a non-confined person by a prisoner. If so, the Court will grant Petitioner the 27 2 The Court may apply any or all of these rules to habeas corpus petitions that are not brought under 28 U.S.C. 1 opportunity to file an amended petition directly challenging his ongoing prosecution rather than 2 the State Bar of California’s disciplinary decision. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 3 1971) (“[A] petition for habeas corpus should not be dismissed without leave to amend unless it 4 appears that no tenable claim for relief can be pleaded were such leave granted.”). 5 B. Proper Respondent 6 Habeas Rule 2(a) provides that “[i]f the petitioner is currently in custody under a state- 7 court judgment, the petition must name as respondent the state officer who has custody.” The 8 advisory committee’s note further “spell[ed] out the various situations which might arise and 9 who should be named as respondent(s) for each situation,” including when the applicant is in jail, 10 prison, or other actual physical restraint but is attacking a state action which will cause him to be 11 kept in custody in the future rather than the government action under which he is presently 12 confined.” Habeas Rule 2, advisory committee’s note to 1976 adoption. The advisory committee 13 stated that in such a situation, the “named respondents shall be the state or federal officer who 14 has official custody of him at the time the petition is filed and the attorney general of the state 15 whose action subjects the petitioner to future custody.” Id. 16 In this case, Petitioner names the State Bar of California as Respondent. (ECF No. 1 at 1; 17 ECF No. 11 at 1). A petitioner’s failure to name a proper respondent requires dismissal of his 18 habeas petition for lack of personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 19 359, 360 (9th Cir. 1994). However, the Court will give Petitioner the opportunity to cure this 20 defect by amending the petition to name a proper respondent, such as the warden of his facility 21 and the Attorney General of California. See Dubrin v. California, 720 F.3d 1095, 1100 (9th Cir. 22 2013) (petitioner should be granted leave to amend petition to name proper respondent). 23 III. 24 ORDER 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The order to show cause issued on August 31, 2021 (ECF No. 10) is DISCHARGED; 27 2. Petitioner is GRANTED THIRTY (30) days from the date of service of this order in 1 3. The Clerk of Court is DIRECTED to send Petitioner a blank § 2241 petition. 2 Petitioner is forewarned that failure to follow this order will result in a recommendation 3 | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 4 | failure to prosecute or to comply with a court order may result in a dismissal of the action). 5 6 IT IS SO ORDERED. DAM Le 7 | Dated: _ September 28, 2021 ;

UNITED STATES MAGISTRATE JUDGE

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