The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF SUPERIOR COURT UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner, a state prisoner recommitted for treatment as a mentally disordered offender, filed a "Petition for Writ of Habeas Corpus" on August 1, 2012. Respondent filed an Answer and lodged documents on August 24, 2012. Petitioner filed a Reply on September 6, 2012.
On July 29, 2011, the Superior Court ordered Petitioner recommitted for mental health treatment under California Penal Code section 2962 et seq. (Lodged Document 2). Before filing a direct appeal from this order, Petitioner filed a habeas corpus petition with the California Supreme Court in action S195333 (Lodged Document 11). On August 17, 2011, the California Supreme Court summarily denied this petition, citing "In re Dixon (1953) 41 Cal. 2d 756, 759; In re Swain, (1949) 34 Cal. 2d 300, 304; In re Lindley, (1947) 29 Cal. 2d 709, 723" (Lodged Document 12).
On direct appeal, Petitioner challenged the sufficiency of the evidence to support the recommitment order (Lodged Document 3). The California Court of Appeal rejected this challenge in a reasoned decision filed on June 22, 2012 (Lodged Document 6).
Read liberally, the present Petition appears to challenge the sufficiency of the evidence and the failure of an assertedly subpoenaed witness to appear to testify in court, which allegedly deprived Petitioner of his right to cross-examine the witness. The present Petition names "Superior Court San Luis Obispo" as the sole "Respondent."
For the reasons discussed herein, the Petition should be denied and dismissed without prejudice.
I. The Court Lacks Personal Jurisdiction Over Respondent.
"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); see 28 U.S.C. foll. § 2254 Rule 2(a). Where, as here, the petitioner is confined in an institutional facility, the warden or supervisor of the institutional facility is the state officer having custody of the petitioner. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); accord Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Stanley v. California Supreme Court, 21 F.3d at 360. "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Stanley v. California Supreme Court, 21 F.3d at 360; accord Smith v. Idaho, 392 F.3d 350, 352-55 (9th Cir. 2004). Thus, the Petition's naming of "Superior Court San Luis Obispo" as the sole Respondent deprives this Court of personal jurisdiction.*fn1
II. Petitioner has Failed to Exhaust State Remedies.
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844. A federal court may raise exhaustion problems sua sponte. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506 ...