The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE SUBSTITUTION OF RESPONDENT MATTHEW CATE IN PLACE OF FORMER RESPONDENT C. DICKINSON PURSUANT TO FED. R. CIV. P. 25(d)
ORDER DIRECTING RESPONDENT TO LODGE ADDITIONAL RECORDS AND TO FILE A SUPPLEMENTAL BRIEF REGARDING THE MOTION TO DISMISS
NO LATER THAN THIRTY DAYS AFTER THE DATE OF SERVICE OF THIS ORDER
ORDER PERMITTING PETITIONER TO FILE A SUPPLEMENTAL RESPONSE NO LATER THAN THIRTY DAYS AFTER RESPONDENT'S SERVICE OF THE SUPPLEMENTAL BRIEF ON PETITIONER ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF HIS MOTION FOR THE APPOINTMENT OF COUNSEL
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on September 21, 2009, and on behalf of Respondent on February 10, 2010.
I. Substitution of Respondent Matthew Cate
In connection with a motion to dismiss the action for untimeliness filed on March 9, 2010 (doc. 15 at 1, n. 1), Respondent requested that the Court substitute Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), as Respondent in this action. The request is unopposed.
Respondent represented that Petitioner is currently incarcerated out of state and that thus, the Secretary of the CDCR would be the appropriate respondent in this action. (Id.) Respondent requested that the substitution occur pursuant to Fed. R. Civ. P. 25(d), which provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.
Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Although petitions brought by federal prisoners must be filed in the district of confinement, petitions brought by prisoners in custody under a judgment and sentence of a state court of a state which, as California, contains two or more federal judicial districts, are subject to the terms of 28 U.S.C. § 2241(d), which expressly 1) permits a state prisoner to file a petition in either the district where the person is in custody or in the district in which the state court was held which convicted and sentenced the prisoner, and 2) vests concurrent jurisdiction in both courts. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (state prisoner may bring petition in the federal district where he is confined or in the federal district where the sentencing court is located); see, OrtizSandoval v. Gomez, 81 F.3d 891, 894-95 (9th Cir. 1996).
Here, the petition, in which Petitioner challenges convictions suffered in Stanislaus County, was transferred to this district, in which the state court was located that convicted and sentenced Petitioner. Thus, the Court obtained personal jurisdiction over the Respondent.
The proper respondent to a habeas petition is the person who has custody over the petitioner. 28 U.S.C. §§ 2242, 2243. The statutes contemplate a proceeding against a person who has the immediate custody of the prisoner and the power to produce the body of the prisoner. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). The Habeas Rules do not expressly specify the warden of the petitioner's custodial institution as the proper respondent; however, the Advisory Committee Note to Habeas Rule 2 indicates that the warden and the chief officer in charge of the state penal institutions are appropriately considered as the state officer having custody. It has been held that naming the California Director of Corrections in place of the warden of the institution where a petitioner is housed does not deprive the court of personal jurisdiction over the respondent where the petitioner is a state prisoner bringing a challenge to a conviction sustained within the jurisdiction of the ...