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WILLIS v. STATE

United States District Court, S.D. California


September 16, 2005.

RODNEY WILLIS, Petitioner,
v.
THE STATE OF CALIFORNIA, Respondent.

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.

FAILURE TO FILE PETITION

  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 action.

  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 id.

  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).

  CONCLUSION AND ORDER

  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.

  IT IS SO ORDERED.

20050916

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