The opinion of the court was delivered by: MARILYN HUFF, District Judge
(1) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND;
(2) DETAILING PETITIONER'S OPTIONS
Petitioner, a state prisoner proceeding pro se, has paid the
$5.00 filing fee and had filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (West Supp. 2004).
FAILURE TO NAME PROPER RESPONDENT
Review of the Petition reveals that Petitioner has failed to
name a proper respondent. 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). 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).
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. "Both the warden of a California prison and
the Director of Corrections for California have the power to
produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.
Here, Petitioner has incorrectly named "Attorney General of the
State of California," as Respondent. Rule 2(b) of the rules
following section 2254 states that "if the applicant is not
presently in custody pursuant to a state judgement against which
he seeks relief but may be subject to such custody in the
future," then "the officer having present custody of the
applicant as well as the attorney general of the state in which
the judgment which he seeks to attack was entered shall each be
named as respondents." Rule 2 (b), 28 U.S.C. foll. § 2254. The
Attorney General of the State of California is not a proper
respondent in this action because Petitioner is presently in
custody, and consequently there is no basis for Petitioner to
have named the Attorney General as a respondent in this action.
In order for this Court to entertain the Petition filed in this
action, Petitioner must name the warden in charge of the state
correctional facility in which Petitioner is presently confined
or the Director of the California Department of Corrections.
Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992)
FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS
In addition, Petitioner has not alleged exhaustion as to claim
three. (See Pet. at 12.) The exhaustion requirement is
satisfied by providing the state courts with a "fair opportunity"
to rule on Petitioner's constitutional claims. Anderson v.
Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state's
highest court, either on direct appeal or through state
collateral proceedings.*fn1 See Sandgathe v. Maass,
314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in
the federal proceedings must be the same as that raised in the
state proceedings. See Anderson, 459 U.S. at 6. Here,
Petitioner has not alleged exhaustion as to his claim that his
sentence violates the Eighth Amendment to the United States
Constitution (claim three). (See Pet. at 12.)
To remedy his failure to exhaust, Petitioner may choose one of
the following options.
i) First Option: Demonstrate Exhaustion
Petitioner may file further papers with this Court to
demonstrate that he has in fact exhausted the claim the Court has
determined appears to be unexhausted. If Petitioner chooses this
option, his papers are due no later than January 3, 2006.
Respondent may file a reply by February 2, 2006.
ii) Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal
petition and return to state court to exhaust his unexhausted
claims. Petitioner may then file a new federal petition
containing only exhausted claims. See Rose v. Lundy,
455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a
mixed petition may dismiss his petition to "return to state
court to exhaust his claims"). If Petitioner chooses this second
option, he ...