The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE CLERK TO SUBSTITUTE TIM VIRGA AS RESPONDENT ORDER DEEMING PETITIONER'S TRAVERSE AND MOTION AND ADDENDUM THERETO (DOCS. 16, 20) TO BE AN OPPOSITION TO THE PETITION ORDER GRANTING RESPONDENT'S REQUEST FOR JUDICIAL NOTICE
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION DISMISS (Doc. 15) ORDER DIRECTING DISMISSAL OF THE ACTION ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner who is 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 30, 2009, and on behalf of Respondent on June 28, 2010.
Pending before the Court is Respondent's motion to dismiss the petition, filed and served on Petitioner on July 26, 2010. On August 16, 2010, Petitioner filed in response to the motion a "Traverse" and motion to grant habeas corpus relief due to a miscarriage of justice and actual innocence.
The Court DEEMS this document to be an opposition to Respondent's motion to dismiss. In the absence of any objection by Respondent, the Court will further CONSIDER Petitioner's addendum to his traverse, filed on September 20, 2010, as part of his opposition to the motion to dismiss.
Respondent filed a reply on August 23, 2010. I. Substitution of Tim Virga as the Proper Respondent 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.
The respondent must have the power or authority to provide the relief to which a petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir. 2004). A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
However, personal jurisdiction, including the requirement of naming the technically correct custodian under § 2242 and the Habeas Rules, may be forfeited or waived on behalf of the immediate custodian by the relevant government entity, such as the state in a § 2254 proceeding. Smith v. Idaho, 392 F.3d 350, 355-56, 356 n. 4 (9th Cir. 2004) (where the state conceded it had waived lack of jurisdiction over a petitioner's immediate custodian and submitted itself in his stead to the jurisdiction of the federal courts). A court has the discretion to avoid delay and waste of the resources of the court and the parties by recognizing a waiver instead of requiring formal amendment of the petition by the petitioner. Id. at 356 n.6.
Here, Petitioner, who is incarcerated at the California State Prison at Sacramento (SAC), initially named James Walker as Respondent. (Pet. 1.) However, in the motion to dismiss, Respondent states that the proper respondent is Tim Virga, who currently acts as the warden at SAC, where Petitioner is housed. (Mot. 1 n.1.) Further, it is stated that the motion to dismiss is filed on behalf of the Respondent. Respondent requests that the Court substitute Tim Virga as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. (Mot. 1 n.1.) Rule 25(d) 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.
The Court concludes that Tim Virga, Acting Warden of SAC, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of James Walker.
II. Consideration of the Motion to Dismiss
A federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).
Respondent has filed a motion to dismiss the petition on the ground that this Court lacks subject matter jurisdiction over the petition because it is successive and thus is barred by 28 U.S.C. § 2244.
Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) allows a district court to dismiss a petition if 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 Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to ...