The opinion of the court was delivered by: George H. WU United States District Judge
OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS
On November 16, 2009, petitioner Arthur Rios, a state inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, which this Court dismissed with leave to amend under Rule 12(e) due to petitioner's failure to name the proper respondent and to set forth his grounds for relief and supporting facts, and ordered petitioner to file an amended petition within thirty days. However, petitioner has not filed an amended petition.
Rule 1 of the Rules Governing Section 2254 Cases in the United States District Courts ("Rules") provides that the Rules govern the procedure in the federal district courts on an application under 28 U.S.C. § 2254 by a person in custody pursuant to a judgment of a state court. 28 foll. U.S.C. § 2254, Rule 1. As an initial matter, Rule 2(a), 28 foll. U.S.C. § 2254, requires a habeas corpus petition must comply with the following format:
If the petitioner is currently in custody under a state court judgment, the petition must name as respondent the state officer who has custody.
Rule 2(a). Here, petitioner improperly named the State Superior Court as the respondent. "The proper respondent in a federal habeas corpus petition is the petitioner's 'immediate custodian.'" Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) (citation omitted). "This person typically is the warden of the facility in which the petitioner is incarcerated." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); Brittingham, 982 F.2d at 379. "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Stanley, 21 F.3d at 360; Belgarde v. State of Montana, 123 F.3d 1210, 1212 (9th Cir. 1997).
Additionally, Rule 2(c) requires that the petition must: "(1) specify all the grounds for relief available to the petitioner; [and] (2) state the facts supporting each ground. . . ." 28 foll. U.S.C. § 2254, Rule 2(c). Rule 2(d) requires that the petition "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule." 28 foll. U.S.C. § 2254, Rule 2(d). This district court, in Local Rule 83-16.1, has prescribed a habeas corpus petition form, which it makes "available to petitioners without charge." Id. Here, although petitioner has used bits and pieces of that form, he has instead submitted a petition that is really a legal memorandum. Moreover, on the form, petitioner states the facts supporting each ground are: "(see additional pages)." Yet, the added pages do not set forth any facts but instead set forth legal argument. Thus, the petition is vague, ambiguous and indefinite, and petitioner must file an amended petition that separately sets forth each claim and the facts supporting each claim.
Although this Court could have immediately summarily dismissed without prejudice the habeas petition, the Court instead dismissed the petition with leave to amend and ordered petitioner to file an amended petition, within thirty (30) days. The petitioner was admonished that failure to timely file the amended petition could result in dismissal of the action. Although more than thirty days have passed, petitioner has not filed an amended petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal. . . ." 28 foll. U.S.C. § 2254, Rule 4. Since the habeas petition is defective on its face, and does not name the proper respondent and is vague as to petitioner's claims and the fact supporting those claims, it should now be summarily dismissed without prejudice.
IT IS HEREBY ORDERED that Judgment shall be entered SUMMARILY DISMISSING without prejudice the petition for writ of habeas corpus.
ROSALYN M. CHAPMAN UNITED STATES ...