The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1) AND 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 what has been docketed as 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 August 20, 2012 (doc. 4). Pending before the Court is the petition filed by Petitioner on August 7, 2012.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted.
Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner filed a document, which was docketed as a petition for writ of habeas corpus, in which he indicates that he is incarcerated at the California Institution for Men at Chino, California, which is located outside the territory of the Eastern District of California, and is serving a three-year sentence imposed in February 2012 in the Kern County Superior Court. The document is addressed to this Court, and specifically to the Clerk of the Court. Petitioner states that on February 24, 2012, a "possible hold" was placed on him by the United States Immigration and Customs Enforcement Unit; however, Petitioner further alleges that in February 2007, he was sworn in as a United States citizen in Fresno California. Petitioner states that the possible hold is erroneous, and he requests the Clerk to write a letter to the staff of the California Department of Corrections and Rehabilitation (CDCR) to inform them of Petitioner's correct name and citizenship. Petitioner requests the Clerk thus to help him remove the possible exclusion/deportation hold, and to forward the letter to various institutional entities.
II. Dismissal of the Petition
Although the document filed by Petitioner was docketed as a petition for writ of habeas corpus, Petitioner was actually corresponding with the Clerk of the Court concerning documentation regarding Petitioner's citizenship. In light of the requirements for a petition for writ of habeas corpus, it is evident that the document Petitioner filed is not a petition challenging the legality or duration of his confinement.
A federal court may only grant a state prisoner's petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "Custody" is not limited to actual physical incarceration; a petitioner is in "custody" if he is subject to restraints not shared by the public generally. Jones v. Cunningham, 371 U.S. 236, 243 (1963). A petitioner must be in custody with respect to the conviction or restraint he attacks in the petition. See, Maleng v. Cook, 490 U.S. 488, 490-492 (1989).
Here, Petitioner is in state custody pursuant to a criminal conviction which has not been challenged in this proceeding; Petitioner repeatedly refers to a "possible" federal hold, but Petitioner has not alleged any facts showing actual custody pursuant to a hold or restraint in violation of the Constitution, law, or treaties of the United States.
A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. Again, Petitioner's allegations of a "possible" hold do not address the legality or duration of his confinement.
Further, a petition for writ of habeas corpus brought on behalf of one in custody under a state court judgment shall allege the name of the person who has custody over the applicant as respondent. 28 U.S.C. § 2242; Habeas Rule 2(a). 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, ...