The opinion of the court was delivered by: DANA M. SABRAW, District Judge
ORDER DISMISSING CASE WITHOUT PREJUDICE
Petitioner, a person housed at the San Diego County Sheriff's
Department South Bay Detention Facility, proceeding pro se, has
submitted a document which has been filed as a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254, but which consists
merely of a narrative of events and irregularities in
Petitioner's state criminal proceedings.
Petitioner has not filed a Petition for writ of habeas corpus
in this action. Therefore, unless Petitioner is a capital
prisoner, he has not initiated habeas proceedings in this Court.
Calderon (Nicolaus) v. United States District Court,
98 F.3d 1102, 1107 n. 3 (9th Cir. 1996) ("Unlike non-capital prisoner who
initiate habeas proceedings by filing a petition for a writ of
habeas corpus, capital prisoners commence federal habeas
proceedings by filing a request for appointment of counsel.");
McFarland v. Scott, 512 U.S. 849 (1994).
Petitioner does not contend that he is a capital prisoner, that
is, a prisoner under sentence of death, and there is nothing in
the documents he has submitted which indicates that he is a capital prisoner. If Petitioner wishes to proceed with a habeas
action in this Court he must (as is the case with all non-capital
prisoners) file a petition for writ of habeas corpus, which will
be given a separate civil case number. (A blank habeas petition
form is attached to this Order for Petitioner's convenience).
However, if Petitioner is in fact a capital prisoner, he may
request the Court to re-open this action in order to permit him
to file a Petition under the civil case number assigned to this
FAILURE TO NAME A RESPONDENT
In addition to failing to file a Petition, Petitioner has also
failed to name a proper respondent, thereby depriving this Court
of jurisdiction. On federal habeas, a state prisoner must name
the state officer having custody of him as the respondent.
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996)
(citing Rule 2(a), 28 U.S.C. foll. § 2254). "Typically, that
person is the warden of the facility in which the petitioner is
incarcerated." Id. Federal courts lack personal jurisdiction
when a habeas petition fails to name a proper respondent. See
The warden is the typical respondent. However, "the rules
following section 2254 do not specify the warden." Id. "[T]he
`state officer having custody' may be `either the warden of the
institution in which the petitioner is incarcerated . . . or the
chief officer in charge of state penal institutions.'" Id.
(quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's
note). If "a petitioner is in custody due to the state action he
is challenging, `[t]he named respondent shall be the state
officer who has official custody of the petitioner (for example,
the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C.
foll. § 2254 advisory committee's note).
Here, Petitioner has incorrectly named "The State of
California" as respondent. A long standing rule in the Ninth
Circuit holds "that a petitioner may not seek [a writ of] habeas
corpus against the State under . . . [whose] authority . . . the
petitioner is in custody. The actual person who is [the]
custodian [of the petitioner] must be the respondent." Ashley v.
Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement
exists because a writ of habeas corpus acts upon the custodian of
the state prisoner, the person who will produce "the body" if
directed to do so by the Court. In order for this Court to
entertain a habeas Petition, Petitioner must name the warden in
charge of the state correctional facility in which Petitioner is
presently confined or the Sheriff of San Diego County. See Brittingham v. United
States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
This action is DISMISSED without prejudice because Petitioner
has not filed a Petition and has therefore failed to initiated
federal habeas proceedings, and because he has failed to name a
proper respondent. If Petitioner is a capital prisoner he may
request to have this case reopened. However, if Petitioner is a
non-capital prisoner and he wishes to proceed with a federal
habeas action, he must file a Petition which will be given a new
civil case number.
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