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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFREY J. BIGGS, No. CIV S-04-2667-MCE-CMK-P

Petitioner, 

vs. ORDER

ARNOLD SCHWARZENEGGER,

et al.,

Respondents.

 /

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On May 17, 2005, the court issued an order which

contained findings and recommendations that the petition be dismissed for failure to exhaust

state court remedies. Those findings and recommendations were adopted and judgment was

entered on June 30, 2005. Petitioner appealed and, following remand from the Ninth Circuit

Court of Appeals, this court issued an order on December 20, 2005, vacating the judgment and

providing petitioner an opportunity to file objections to the May 17, 2005, findings and

recommendations. Petitioner filed objections on December 9, 2005.

/ / /

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The portion of the court’s May 17, 2005, order granting in forma pauperis status 1

is not vacated and remains in effect.

2

In the May 17, 2005, findings and recommendations, the court stated petitioner

failed to exhaust state court remedies by failing to present his claim to the California Supreme

Court. In his objections, petitioner declares that he filed a petition for review with the California

Supreme Court on September 10, 2004, which was denied on November 17, 2004. Based on the

foregoing, it appears that petitioner has indeed exhausted his state court remedies. The May 17,

2005, findings and recommendations will be vacated.1

The petition continues, however, to suffer from a defect not previously identified. 

“A petitioner for habeas corpus relief must name the state officer having custody of him or her as

the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.

1994); see also Rule 2(a), Federal Rules Governing Section 2254 Cases. Here, petitioner names

as respondents Arnold Schwarzenegger, CDC Director J. Woodford, and the Board of Prison

Terms. None of these are the warden of San Quentin State Prison, where petitioner is currently

confined. Because petitioner has not named the appropriate state officer, the petition must be

dismissed with leave to amend to name the correct respondent. See Stanley, 21 F.3d at 360. 

Petitioner is warned that failure to comply with this order may result in the dismissal of this

action. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations issued on May 17, 2005, are vacated;

2. Petitioner’s petition for writ of habeas corpus is dismissed with leave to

amend; 

3. Petitioner shall file an amended petition on the form employed by this

court, and which names the proper respondent and states all claims and requests for relief, within

30 days of the date of this order; and 

/ / /

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4. The Clerk of the Court is directed to send petitioner the court’s form

habeas corpus application.

DATED: February 22, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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