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JOHNSON v. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

United States District Court, S.D. California


November 10, 2005.

LAMONT JOHNSON, Petitioner,
v.
ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent.

The opinion of the court was delivered by: MARILYN HUFF, District Judge

ORDER:

(1) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and
(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) (per curiam).

  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.)

  2. PETITIONER'S OPTIONS

  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 must file a pleading with this Court no later than January 3, 2006. Respondent may file a reply by February 2, 2006.

  Petitioner is cautioned that any new federal petition must be filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable "tolling" applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).*fn2 Filing a petition in federal court does not stop the statute of limitations from running. Id. at 181-82; Frye v. Hickman, 273 F.3d 1144, 1145-46 (9th Cir. 2001); 28 U.S.C. § 2244(d).

  iii) Third Option: Formally Abandon Unexhausted Claim(s)

  Petitioner may formally abandon his unexhausted claim and proceed with his exhausted ones. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit[] the habeas petition to present only exhausted claims"). If Petitioner chooses this third option, he must file a pleading with this Court no later than January 3, 2006. Respondent may file a reply by February 2, 2006.

  Petitioner is cautioned that once he abandons his unexhausted claim, he may lose the ability to ever raise it in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).*fn3 iv) Fourth Option: File a Motion to Stay the Federal Proceedings

  Petitioner may move to dismiss his unexhausted claim without prejudice and stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. Calderon v. United States Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981, 986-88 (9th Cir. 1998); Valerio v. Crawford, 306 F.3d. 742, 770-71 (9th Cir. 2002) (en banc). If Petitioner chooses this fourth option, he must file a pleading with this Court no later than January 3, 2006. Respondent may file a reply by February 2, 2006.

  FAILURE TO SIGN PETITION

  Rule 2(c) of the Rules Governing Section 2254 Cases provides that "[t]he petition shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner." Rule 2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here, Petitioner has failed to sign the Petition.

  CONCLUSION

  The Court DISMISSES this case without prejudice and with leave to amend because Petitioner has: (1) failed to name the proper respondent, (2) failed to alleged exhaustion as to his state court remedies, and (3) failed to sign his petition. Accordingly, if Petitioner wishes to proceed with this case he must, no later than January 3, 2006: (1) file a First Amended Petition which names the proper respondent and which is signed, AND (2) choose one of the options outlined above.*fn4

  IT IS SO ORDERED.

20051110

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