The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
ORDER DISMISSING PETITION WITHOUT PREJUDICE PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 9, 2011. Petitioner also filed an "Election Regarding Consent to Proceed Before a United States Magistrate Judge." Respondent filed an Answer on December 30, 2011, asserting: (1) the Court lacks jurisdiction because Petitioner allegedly failed to name as Respondent the person having custody over Petitioner; (2) the Court lacks jurisdiction because Petitioner allegedly is no longer in state custody; and (3) the Petition is unexhausted. On January 5, 2012, Respondent filed a "Consent to Proceed Before a United States Magistrate Judge (State/Federal Habeas Case)." On January 13, 2012, Petitioner filed a "Response to the State of California Memorandum, etc.," constituting Petitioner's Reply ("Reply").
A jury found Petitioner guilty of transportation of marijuana in violation of California Health and Safety Code section 11360(a) (Clerk's Transcript 78, 84). On August 10, 2009, Petitioner received a sentence of three years (Reporter's Transcript 528-29; Clerk's Transcript 90-92). The sentencing court advised Petitioner that:
(1) Petitioner was required to register as a narcotics offender;*fn1 and (2) following service of the sentence, Petitioner would be subject to a three-year parole period (Reporter's Transcript 528-29).
The California Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Bennett, 2010 WL 2406408 (Cal. App. June 17, 2010)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 7, 8). Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court on October 8, 2010, which that court denied in a written order on November 3, 2010 (Respondent's Lodgments 8, 10). Petitioner has not yet filed any habeas corpus petition in the California Supreme Court.*fn2
1. Delay in bringing Petitioner to trial assertedly violated Due Process and the Sixth Amendment; and
2. The prosecution's main witnesses allegedly committed perjury.
"A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); 28 U.S.C. § 2242 (habeas petition must name "the person who has custody over [the petitioner]"); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); see Rule 2(a), Rules Governing Section 2254 Cases in the United States District Courts. The failure to name the proper respondent deprives the Court of personal jurisdiction. Smith v. Idaho, 392 F.3d 350, 352-55 (9th Cir. 2004). "[W]hen a habeas petitioner has failed to name the proper respondent pursuant to § 2242 [the Court] must ask sua sponte whether the respondent who is named has the power to order the petitioner's release." Id. at 355 n.3 (original emphasis). "If not, the court may not grant effective relief, and thus should not hear the case unless the petition is amended to name a respondent who can grant the desired relief." Id.
Respondent contends, and Petitioner does not dispute, that at the time Petitioner filed the Petition Petitioner was (and remains) a detainee in the physical custody of United States Immigration and Customs Enforcement. Petitioner contends, however, that he also was (and remains) a parolee with respect to the challenged conviction (see Reply, p. 3). A federal habeas petitioner on parole at the time of filing the federal petition may name as the respondent the petitioner's probation or parole officer "and the official in charge of the parole or probation agency, or the state correctional agency, as appropriate." Ortiz-Sandoval v. Gomez, 81 F.3d at 894 (9th Cir. 1996) (quoting 1976 Advisory Committee Note to Rule 2; internal quotations omitted). Petitioner has not named the proper Respondent. Respondent "People of the State of California" is not Petitioner's parole officer or the parole agency having legal control over Petitioner with respect to the ...