(HC) Ulrey v. Yates, et al., Doc.

Case 2:06-cv-00839-FCD-DAD Document 4 Filed 04/26/2006 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 RON ULREY,

11 Petitioner, No. CIV S-06-0839 FCD DAD P

12 vs.

13 COURT OF APPEAL, et al.,

14 Respondents. ORDER

15 /

16 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas

17 corpus pursuant to 28 U.S.C. § 2254. Petitioner has not paid the required filing fee of $5.00 or

18 filed a complete application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a).

19 Petitioner’s in forma pauperis application consists of the first page of a two-page

20 form, together with a handwritten note in which petitioner asserts that he is indigent. This

21 document does not satisfy the requirements of Rule 3(a) of the Federal Rules Governing § 2254

22 Cases in the United States District Courts. Petitioner will be granted thirty days to pay the filing

23 fee or submit a properly completed in forma pauperis application.

24 “A petitioner for habeas corpus relief must name the state officer having custody

25 of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d

26 359, 360 (9th Cir. 1994) (citing Rule 2(a), Fed. R. Governing § 2254 Cases in the U.S. Dist.

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 Case 2:06-cv-00839-FCD-DAD Document 4 Filed 04/26/2006 Page 2 of 2

1 Cts.). In this case, petitioner has named the Court of Appeal and the Attorney General of the

2 State of California as the respondents in this action. The Court of Appeal is not an individual,

3 and the state attorney general is not the state officer who has custody of petitioner. Accordingly,

4 the petition will be dismissed with leave to file an amended petition naming as respondent the

5 warden of the institution where petitioner is currently confined. See Stanley, 21 F.3d at 360.

6 In accordance with the above, IT IS HEREBY ORDERED that:

7 1. Petitioner shall submit, within thirty days from the date of this order, either the

8 $5.00 filing fee or a properly completed application to proceed in forma pauperis. If petitioner

9 needs additional time to comply with this order, petitioner must request additional time before

10 the thirty-day period ends. Petitioner’s failure to comply with this order or request an extension

11 of time may result in a recommendation that this action be dismissed.

12 2. Petitioner’s habeas corpus petition is dismissed with leave to file an amended

13 petition within thirty days from the date of this order. The amended petition must be filed on the

14 form provided with this order and must name as respondent the warden of the institution where

15 petitioner is confined. The amended petition must bear the case number assigned to this action

16 and must be labeled “Amended Petition.” If petitioner needs additional time to comply with this

17 order, petitioner must request additional time before the thirty-day period ends. Petitioner’s

18 failure to comply with this order or request an extension of time may result in a recommendation

19 that this action be dismissed.

20 3. The Clerk of the Court is directed to send petitioner a habeas corpus petition

21 form with a form application to proceed in forma pauperis.

22 DATED: April 25, 2006.

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