The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER DISMISSING SECOND AMENDED PETITION WITHOUT PREJUDICE
On October 8, 2010, Petitioner, a person confined at Atascadero State Hospital, proceeding pro se, submitted a two-page document titled "Mental Health Harassment" which was docketed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On October 27, 2010, this Court issued an Order dismissing the case for Petitioner's failure to name a proper respondent, failure to state grounds for relief in the petition, and failure to use a court-approved form. Petitioner was instructed that to have this case reopened he had to file a First Amended Petition no later than December 15, 2010.
On November 15, 2010, Petitioner filed a First Amended Petition. By Order dated November 23, 2010, the Court dismissed the First Amended Petition for Petitioner's failure to state grounds for relief in the petition, name a proper respondent, demonstrate venue is proper in this Court, and allege exhaustion of state judicial remedies. Petitioner was instructed that to have this case reopened he had to file a Second Amended Petition no later than December 15, 2010. On December 1, 2010, Petitioner filed a Second Amended Petition.
For the following reasons, the Second Amended Petition is dismissed without prejudice.
FAILURE TO STATE GROUNDS FOR RELIEF IN PETITION
Petitioner has failed to include any claims or factual allegations in the Second Amended Petition whatsoever. Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition must "specify all grounds for relief available to the petitioner [and] state the facts supporting each ground." Rule 2(c), 28 U.S.C. foll. § 2254. Here, Petitioner has violated Rule 2(c).
In order to satisfy Rule 2(c), Petitioner must point to a "real possibility of constitutional error." Cf. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks omitted). Facts must be stated, in the petition, with sufficient detail to enable the Court to determine, from the face of the petition, whether further habeas corpus review is warranted. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit the respondent to assert appropriate objections and defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla. 1989). Here, the lack of grounds for relief in the Petition prevents a respondent from being able to assert appropriate objections and defenses.
FAILURE TO NAME PROPER RESPONDENT
In addition, review of the Second Amended 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 foll. U.S.C. § 2254). "Typically, this person is the warden of the facility in which the petitioner is incarcerated." 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 foll. U.S.C. § 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 foll. U.S.C. § 2254 advisory committee's note). However, if a "petitioner is on probation or parole, he may name his probation or parole officer 'and the official in charge of the parole or probation agency, or the state correctional agency, as appropriate.'" Id. (quoting Rule 2, 28 foll. U.S.C. § 2254 advisory committee's note). In some cases, a petitioner may name the state attorney general. Id.
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 "State of California," "California Department of Corrections" and "Atascadero State Hospital," as Respondents. In order for this Court to entertain a Petition for a Writ of Habeas Corpus, Petitioner must name the warden or state officer in charge of the state correctional facility in which Petitioner is ...