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
On November 4, 2005, Petitioner, a state prisoner proceeding
pro se, paid the $5.00 filing fee and filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (West Supp. 2004).
This Court dismissed the petition on November 14, 2005 because
Petitioner had failed to name a proper respondent, failed to
allege exhaustion as to all claims in the petition and failed to
sign the petition. (See Order dated Nov. 14, 2005 [doc. no.
2].) Petitioner was given until January 3, 2006 to file a
First Amended Petition which cured the pleading deficiencies outlined
in the Order and to choose one of the options outlined in the
Order. (See id.) On November 21, 2005, Petitioner filed a
First Amended Petition.
FAILURE TO NAME PROPER RESPONDENT
Review of the Petition reveals that Petitioner has again 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 judgment 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 again failed to allege 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.)
In order to cure this pleading deficiency and permit the case
to go forward, Petitioner must choose from one of the following
2. PETITIONER'S 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 February 3, 2006.
Respondent may file a reply by March 3, 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
February 3, 2006. Respondent may file a reply by March 3,
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 ...