Hupp v. San Diego Superior Court et al

Filing 2

ORDER DISMISSING CASE Without Prejudice And With Leave To Amend: In order to proceed with this case, Petitioner must, no later than 4/13/2012, file a First Amended Petition that cures the pleading deficiencies outlined in this Order. Signed by Judge William Q. Hayes on 2/8/2012. (All non-registered users served via U.S. Mail Service; per Order, a blank 2254 First Amended Petition also was mailed to Petitioner.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HUPP, Civil No. 12 13 14 15 12-0274 WQH (JMA) Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND v. SAN DIEGO SUPERIOR COURT, JOHN SARGENT MEYER, et al., Respondents. 16 17 18 19 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the $5.00 filing fee. IN CUSTODY REQUIREMENT 20 Upon review of the documents filed in this case, it appears that Petitioner is not in the 21 custody of the State of California, nor was he when he filed the Petition because it lists 22 Petitioner’s current address as “965 Hidden Oaks, Beaumont, CA 92223.” (ECF 1 at 1.) 23 Furthermore, Petitioner states he was sentenced to 25 days in custody on November 15, 2011, 24 which means he was released from custody no later than December 10, 2011. (Id.) 25 “Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. § 2254(a), 26 is limited to those persons ‘in custody pursuant to the judgment of a State.’” Brock v. Weston, 27 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a jurisdictional 28 requirement that, at the time a habeas petition is filed, “the habeas petitioner be ‘in custody’ -1- 12cv0274 1 under the conviction or sentence under attack.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) 2 (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). 3 Here, Petitioner may not challenge the constitutional validity of his November 2011, 4 conviction via a § 2254 petition because he was no longer in actual custody pursuant to that 5 conviction and does not allege he was in constructive custody (e.g., parole or probation) at the 6 time he filed the Petition in this case on February 2, 2012. See Brock, 31 F.3d at 889. “[O]nce 7 the sentence imposed for a conviction has completely expired, the collateral consequences of that 8 conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of 9 a habeas attack upon it.” Maleng, 290 U.S. at 490; see Feldman v. Perrill, 902 F.2d 1445, 1448 10 (9th Cir. 1990) (stating that an expired conviction cannot satisfy the “in custody” requirement). 11 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a habeas 12 petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to it that 13 the petitioner is not entitled to relief in the district court. . . .” Rule 4, 28 U.S.C. foll. § 2254. 14 Here, it is plain from the Petition that Petitioner is not presently entitled to federal habeas relief 15 because he was not in the custody of the State of California when he filed his § 2254 Petition in 16 this Court. 17 FAILURE TO NAME PROPER RESPONDENT 18 If Petitioner can satisfy the “in custody” requirement, Petitioner has failed to name a 19 proper respondent. On federal habeas, a state prisoner must name the state officer having 20 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 21 (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a 22 habeas petition fails to name a proper respondent. See id. 23 The warden is the typical respondent. However, “the rules following section 2254 do not 24 specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the 25 institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal 26 institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a 27 petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall 28 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). If a -2- 12cv0274 1 “petitioner is on probation or parole, he may name his probation or parole officer ‘and the 2 official in charge of the parole or probation agency, or the state correctional agency, as 3 appropriate.’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note). In some 4 cases, a petitioner may name the state attorney general. Id. 5 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of] 6 habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The 7 actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v. 8 Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of 9 habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the 10 body” if directed to do so by the Court. “Both the warden of a California prison and the Director 11 of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d 12 at 895. 13 Here, Petitioner has incorrectly named “San Diego Superior Court, Judge John Sargent 14 Meyer, Sheriff William D. Gore, Kamala Harris, and Roes 1-10,” as Respondents. If Petitioner 15 is “in custody,” Petitioner must name the warden in charge of the state correctional facility in 16 which Petitioner is presently confined or the Director of the California Department of 17 Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). CONCLUSION 18 19 Based on the foregoing, the Court DISMISSES this action without prejudice and with 20 leave to amend because Petitioner has failed to satisfy the custody requirement and failed to 21 name a proper respondent. See 28 U.S.C. §§ 2241(c)(3), 2254(a). In order to proceed with this 22 case, Petitioner must, no later than April 13, 2012, file a First Amended Petition that cures the 23 pleading deficiencies outlined in this Order. The Clerk of Court is directed to mail Petitioner 24 a blank First Amended Petition form together with a copy of this Order. 25 DATED: February 8, 2012 26 27 WILLIAM Q. HAYES United States District Judge 28 -3- 12cv0274

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