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Richard Allen Smith v. Kathleen Allison

May 26, 2011

RICHARD ALLEN SMITH,
PETITIONER,
v.
KATHLEEN ALLISON,
RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING RESPONDENT'S REQUEST TO SUBSTITUTE KATHLEEN ALLISON AS RESPONDENT AND DIRECTING THE CLERK TO CHANGE THE NAME OF RESPONDENT TO KATHLEEN ALLISON (DOC. 13) FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 13)

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 1, 13)

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 304. Pending before the Court is Respondent's motion to dismiss the petition filed on March 18, 2011, and served on Petitioner on the same date. No opposition to the motion has been filed.

I. Order to Substitute

Kathleen Allison as 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 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 Substance Abuse Treatment Facility and State Prison (CSATFSP) at Corcoran, California, initially named Ken Clark, Warden, as Respondent. (Pet. 1.) However, in the motion to dismiss, Respondent states that the proper respondent is Kathleen Allison, the current acting warden at CSATFSP, 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 Kathleen Allison 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 Kathleen Allison, Acting Warden at CSATFSP, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), she should be substituted in place of Ken Clark.

Accordingly, the Clerk is ORDERED to substitute Kathleen Allison as Respondent.

II. Proceeding by Way of 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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

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 review a motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court ...


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