The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR LACK OF PERSONAL JURISDICTION OVER RESPONDENT AND PRESENCE OF ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE CASE
Petitioner 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), Petitioner has 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 consent in a signed writing filed by Petitioner on February 26, 2010 (doc. 4). Pending before the Court is the petition, which was filed on February 19, 2010.
In the petition, Petitioner challenges a criminal conviction sustained in Kings County. Petitioner named "California" as the Respondent in this proceeding. Because Petitioner failed to name the state officer having custody of him as a respondent, on November 24, 2010, the Court issued an order granting Petitioner leave to file a motion to amend the petition to name a proper respondent within thirty days of service. The Court's order was filed and served on Petitioner on November 24, 2010. Over thirty days have passed since service of the order on Petitioner, but Petitioner has failed to respond to the Court's order. In the order, the Court informed Petitioner that if he failed to comply with the direction to name a proper respondent, the petition would be subject to dismissal for lack of jurisdiction. (Doc. 8, 9.)
II. Dismissal for Lack of Personal Jurisdiction 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). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). The appropriate respondent where a petitioner is housed in a jail is the sheriff in charge of the facility of confinement. Hood v. California Dept. Of Corrections, 2008 WL 1899915, *2 (E.D. Cal. April 28, 2008).
Here, Petitioner failed to name a proper respondent. Although Petitioner was given an opportunity to name a proper respondent, Petitioner failed to do so.
Accordingly, the petition must be dismissed for lack of personal jurisdiction over the respondent. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
III. Dismissal for Failure to Exhaust State Court Remedies
as to One Claim
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th ...