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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ANTONIO DIAZ, Case No. 1:23-cv-01783-SKO-HC

12 Petitioner, ORDER GRANTING PETITIONER LEAVE

TO FILE MOTION TO AMEND TO NAME

13 v. A PROPER RESPONDENT

14 STATE OF CALIFORNIA, [THIRTY DAY DEADLINE] 15 Respondent.

16 17 On December 29, 2023, Petitioner filed a federal petition for writ of habeas corpus. He 18 named the State of California as Respondent in this matter. The State of California is not a 19 proper respondent, and Petitioner will be granted leave to amend the respondent to avoid 20 dismissal of the action. 21 DISCUSSION 22 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 24 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 25 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 26 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 27 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 1 Petitioner names the State of California as Respondent. A petitioner seeking habeas 2 corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the 3 respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 4 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 5 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 6 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 7 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 8 Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions is also 9 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 10 parole, the proper respondent is his probation or parole officer and the official in charge of the 11 parole or probation agency or state correctional agency. Id. 12 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 13 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 14 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 15 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by 16 amending the petition to name a proper respondent, such as the warden of his facility. See West 17 v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 18 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); 19 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial 20 economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion 21 entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may 22 name the proper respondent in this action. 23 /// 24 /// 25 /// 26 /// 27 /// 1 ORDER 2 Petitioner is GRANTED thirty (30) days from the date of service of this order in which to 3 file a motion to amend the instant petition and name a proper respondent. Failure to amend the 4 petition and state a proper respondent will result in dismissal of the petition for lack of 5 jurisdiction. 6

IT IS SO ORDERED.

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8 Dated: January 2, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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