United States District Court, S.D. California
ORDER: (1) DENYING MOTION TO PROCEED IN FORMA
PAUPERIS; and (2) DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
MICHAEL M. ANELLO United States District Judge
a state prisoner proceeding pro se, has filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, together with a request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). See
Doc. Nos. 1, 2.
TO PROCEED IN FORMA PAUPERIS
request to proceed in forma pauperis is DENIED because
Petitioner has not provided the Court with sufficient
information to determine Petitioner's financial status. A
request to proceed in forma pauperis made by a state prisoner
must include a certificate from the warden or other
appropriate officer showing the amount of money or securities
Petitioner has on account in the institution. Rule 3(a)(2),
28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has
failed to provide the Court with the required Prison
TO NAME PROPER RESPONDENT
review of the Petition reveals that Petitioner has failed to
name a proper respondent. On federal habeas, a state prisoner
must name the state officer having custody of him as the
respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891,
894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. §
2254). Federal courts lack personal jurisdiction when a
habeas petition fails to name a proper respondent. See
warden is the typical respondent. However, “the rules
following section 2254 do not specify the warden.”
Id. “[T]he ‘state officer having
custody' may be ‘either the warden of the
institution in which the petitioner is incarcerated . . . or
the chief officer in charge of state penal
institutions.'” Id. (quoting Rule 2(a), 28
U.S.C. foll. § 2254 advisory committee's note). If
“a petitioner is in custody due to the state action he
is challenging, ‘[t]he named respondent shall be the
state officer who has official custody of the petitioner (for
example, the warden of the prison).'” Id.
(quoting Rule 2, 28 U.S.C. foll. § 2254 advisory
standing rule in the Ninth Circuit holds “that a
petitioner may not seek [a writ of] habeas corpus against the
State under . . . [whose] authority . . . the petitioner is
in custody. The actual person who is [the] custodian [of the
petitioner] must be the respondent.” Ashley v.
Washington, 394 F.2d 125, 126 (9th Cir. 1968). This
requirement exists because a writ of habeas corpus acts upon
the custodian of the state prisoner, the person who will
produce “the body” if directed to do so by the
Court. “Both the warden of a California prison and the
Director of Corrections for California have the power to
produce the prisoner.” Ortiz-Sandoval, 81 F.3d
Petitioner has incorrectly named “Court of Appeals 4th
District, ” as Respondent. In order for this Court to
entertain the Petition filed in this action, Petitioner must
name the warden in charge of the state correctional facility
in which Petitioner is presently confined or the Director of
the California Department of Corrections. Brittingham v.
United States, 982 F.2d 378, 379 (9th Cir. 1992) (per
TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
habeas petitioners who wish to challenge either their state
court conviction or the length of their confinement in state
prison, must first exhaust state judicial remedies. 28 U.S.C.
§ 2254(b), (c); Granberry v. Greer, 481 U.S.
129, 133-34 (1987). Ordinarily, to satisfy the exhaustion
requirement, a petitioner must “‘fairly
present' his federal claim to the highest state court
with jurisdiction to consider it, or . . . demonstrate that
no state remedy remains available.” Johnson v.
Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations
omitted). Moreover, to properly exhaust state court remedies
a petitioner must allege, in state court, how one or more of
his or her federal rights have been violated. For example,
“[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him [or her]
the due process of law guaranteed by the Fourteenth
Amendment, he [or she] must say so, not only in federal
court, but in state court.” See Duncan v.
Henry, 513 U.S. 364, 365-66 (1995).
on the Petition does Petitioner allege that he raised his
claims in the California Supreme Court. If Petitioner has
raised his claims in the California Supreme Court he must so
Court cautions Petitioner that under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) a one-year period
of limitation applies to a petition for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court. The limitation period runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...