Martirosyan v. Holder et al

Filing 8

ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent, signed by Magistrate Judge Gary S. Austin on 7/14/2009. Motion to Amend the Petition due by 8/19/2009. (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 12 NERSES VARDKE MARTIROSYAN, 13 Petitioner, 14 v. 15 UNNAMED, 16 Respondent. 17 18 Petitioner is a detainee of the United States Bureau of Immigration and Customs 19 Enforcement ("ICE") proceeding pro se with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2241. 21 DISCUSSION 22 For a court to hear a petition for writ of habeas corpus, it must have jurisdiction over the 23 prisoner or his custodian. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). A failure to 24 name the proper respondent deprives a habeas court of personal jurisdiction. Brittingham v. United 25 States, 982 F.2d 378, 379 (9th Cir. 1992); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.1989). The 26 proper respondent in a federal habeas corpus petition is the petitioner's "immediate custodian." 27 Brittingham, 982 F.2d at 379, quoting Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C.Cir.1986) 28 1 ) ) ) ) ) ) ) ) ) ) 1:09-CV-01198 GSA HC ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT

U N IT E D STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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(Bork, J., in chambers). The custodian "is the person having a day-to-day control over the prisoner. That person is the only one who can produce 'the body' of the petitioner." Brittingham, 982 F.2d at 379, quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986) (Parole Commission is not custodian despite its power to release petitioner). Normally, the custodian of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). In a case such as this where a detainee is challenging his indefinite detention by ICE, the appropriate respondent would be the Attorney General of the United States. Petitioner does not name a respondent in this matter. Therefore, the petition must be dismissed. However, the Court will give Petitioner the opportunity to cure the defect by amending the petition to name a proper respondent. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interest of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may name the proper respondent in this action. ORDER Accordingly, Petitioner is GRANTED thirty (30) days from the date of service of this order in which to file a motion to amend the instant petition and name a proper respondent. Failure to amend the petition and name a proper respondent will result in a recommendation that the petition be dismissed for lack of jurisdiction.

IT IS SO ORDERED. Dated: 6i0kij

July 14, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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