The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING CASE WITHOUT PREJUDICE
Petitioner, a state prisoner proceeding pro se, has submitted a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
together with a request to proceed in forma pauperis. Petitioner
has no funds on account at the California correctional
institution in which he is presently confined. Petitioner cannot
afford the $5.00 filing fee. Thus, the Court GRANTS
Petitioner's application to proceed in forma pauperis, and allows
Petitioner to prosecute the above-referenced action as a poor
person without being required to prepay fees or costs and without
being required to post security. The Clerk of the Court shall
file the Petition for Writ of Habeas Corpus without prepayment of
the filing fee.
However, a 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). "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 "Attorney General of the
State of California" and "California Department of Corrections,"
as Respondents. The Attorney General of the State of California,
is not a proper respondent in this action. Rule 2 of the Rules
following § 2254 provides that the state officer having custody
of the petitioner shall be named as respondent. Rule 2(a), 28
U.S.C. foll. § 2254. However, "[i]f the petitioner is not yet in
custody but may be subject to future custody under the
state-court judgment being contested, the petition must name as
respondents both the officer who has current custody and the
attorney general of the state where the judgement was entered."
Rule 2 (b), 28 U.S.C. foll. § 2254. Here, there is no basis for
Petitioner to have named the Attorney General as a respondent in
The California Department of Corrections is also an improper
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. "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.
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)
Accordingly, the Court GRANTS Petitioner's Motion to proceed
in forma pauperis and DISMISSES the Petition without prejudice
due to Petitioner's failure to name a proper respondent. To have
this case reopened, Petitioner must file a First Amended Petition
no later than February 13, 2006 in conformance with this Order.
(A blank petition form is included with this Order for
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