The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING AMENDMENT OF THE PETITION TO NAME WARDEN MIKE McDONALD AS RESPONDENT AND ORDERING THE CLERK TO SUBSTITUTE MIKE McDONALD AS RESPONDENT RESPONDENT'S MOTION TO DISMISS FINDINGS AND RECOMMENDATIONS RE:
DEADLINE FOR PETITIONER TO FILE
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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Respondent's motion to dismiss the petition because it is a mixed petition containing both exhausted and unexhausted claims. The motion was filed on October 15, 2010. Petitioner filed an opposition and an amended opposition on December 6, 2010, and January 19, 2011. No reply was filed by Respondent.
I. Substitution of Mike McDonald, Warden of High Desert
State Prison, as Respondent
In this proceeding, the officer who has custody of the petitioner must be named as the respondent. 28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). This is because 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). 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 initially named Matthew Tate as the Director of Corrections as Respondent. (Pet. 1.) However, in the motion to dismiss, Respondent states that the proper respondent is Mike McDonald, the current warden of High Desert State Prison, where Petitioner is incarcerated. (Mot. 1:20-21, 28.) Further, the motion is filed on behalf of Respondent Mike McDonald. (Id.) Respondent admits having custody of Petitioner pursuant to the 2004 judgment of the Kings County Superior Court.
The Court concludes that any objection to jurisdiction has been waived. In the exercise of its administrative discretion, the Court finds it appropriate to substitute Warden Mike McDonald as the Respondent in this proceeding.
The Clerk is DIRECTED to substitute Warden Mike McDonald as the Respondent in this proceeding.
II. Proceeding by a Motion to Dismiss Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9 th Cir. 1999).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) permits the filing of "an answer, motion, or other response," and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
In light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present procedural issues that might limit consideration of the merits of the petition. O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (motion to dismiss for failure to raise any issue of federal law based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982) (failure to exhaust state remedies considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not a possible defect, not apparent on the face of the petition, might preclude a hearing on the merits). It is established in this circuit that the filing of a motion to dismiss is expressly authorized by Habeas Rule 4. Habeas Rule 4 Advisory Committee Notes, 1976 Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983).
The filing of a motion to dismiss instead of an answer was authorized by the Court's order of August 31, 2010, which referred to the possibility of Respondent's filing a motion to dismiss and set forth a briefing schedule if such a motion were filed. (Order, doc. 9, 4-5.)
Further, Habeas Rule 7 permits the Court to direct the parties to expand the record by submitting additional materials relating to the petition and to authenticate such materials, which may include letters predating the filing of the petition, documents, exhibits, affidavits, and answers under oath to written interrogatories propounded by the judge. Habeas Rule 7(a), (b). If, upon expansion of the record, the Court perceives that a defect not apparent on the face of the petition may preclude a hearing on the merits, then the Court may proceed to determine a motion to dismiss. Hillery v. Pulley, 533 F.Supp. 1189, 1196.
In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the United States Supreme Court suggested that summary judgment standards should be used to test whether facially adequate allegations have a sufficient basis in fact to warrant plenary presentation of evidence. The Court noted that expansion of the record in a given case could demonstrate that an evidentiary hearing is unnecessary, and the Court specifically advised that there might be cases in which expansion of the record would provide evidence against a petitioner's contentions so overwhelming as to justify a conclusion that an allegation of fact does not raise a substantial issue of fact. Id. at 81. In such circumstances, the petitioner is entitled to "careful consideration and plenary processing of (his claim,) including full opportunity for presentation of the relevant facts." Id. at 82-83.
Summary judgment standards were likewise applied in Hillery v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the Court stated:
The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact "which if resolved in accordance with the petitioner's contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided." (Citation omitted.) 533 F.Supp. 1197.
In the present case, the record was expanded in connection with the motion to dismiss to include facts concerning Petitioner's presentation of his claims to the state courts. Pursuant to the foregoing standards, this expansion of the record may permit summary disposition of the petition without a full evidentiary hearing. Further, although the parties disagree on the application of the law to the facts, it does not appear that the parties dispute any material facts concerning the pertinent filings in state court.
Accordingly, pursuant to Habeas Rule 4, the Court will review the facts alleged in the petition and as reflected in the evidentiary materials submitted by the ...