United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
Hon.
Gonzalo P. Curiel United States District Judgeq
Petitioner,
a state prisoner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
FAILURE
TO SATSIFY FILING FEE REQUIREMEN
Petitioner
has failed to pay the $5.00 filing fee and has failed to move
to proceed in forma pauperis. This Court cannot proceed until
Petitioner has either paid the $5.00 filing fee or qualified
to proceed in forma pauperis. See Rule 3.2 (a), 28
U.S.C. foll. § 2254.
FAILURE
TO NAME A 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
id.
The
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
committee's note).
A long
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
at 895.
Here,
Petitioner has not named a 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 curiam).
BASIS
FOR THE PETITION
Further,
if Petitioner is challenging the validity of his state court
conviction, 28 U.S.C. § 2254 and not 28 U.S.C. §
2241 is the proper vehicle to challenge his detention.
As the
Ninth Circuit has stated:
Section 2254 is properly understood as “in effect
implement[ing] the general grant of habeas corpus authority
found in § 2241 as long as the person is in custody
pursuant to the judgment of a state court, and not in state
custody for some other reason, such as pre-conviction
custody, custody awaiting extradition, or other forms of
custody that are possible without a conviction.”
[citations omitted.]
White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.
2004) (quoting Walker v. O'Brien, 216 F.3d 626,
633 (7th Cir. 2000) ...