Manzo Ortega v. Walsh

Filing 3

ORDER DISMISSING CASE without Prejudice. If Petitioner wishes to proceed with this case, he must submit, no later than August 14, 2017, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee and file a First Amended Petition. Signed by Judge Roger T. Benitez on 6/13/2017.(All non-registered users served via U.S. Mail Service)(knb)

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FILED

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If JUN 20 PH 12= 19

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DEPUtY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv1107 - BEN (JLB)

MARTIN MANZO ORTEGA,
Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

JUDGE TIMOTHY R. WALSH,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. The Petition is subject to dismissal because

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Petitioner has failed to satisfy the filing fee requirement, has failed to use a court-approved

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petition form, and has failed to name a proper Respondent.

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FAILURE TO SATISFY FILING FEE REQUIREMENT

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Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. Because this Court cannot proceed until Petitioner has either paid the

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$5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case

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without prejudice. See Rule 3(a), 28 U.S.C. foil. § 2254.

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FAILURE TO USE PROPER FORM

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Additionally, a Petition for Writ of Habeas Corpus must be submitted in accordance

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with the Local Rules of the United States District Court for the Southern District of
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17cv1107 - BEN (JLB)

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California. See Rule 2(d), 28 U.S.C. foil. § 2254. In order to comply with the Local Rules,

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the petition must be submitted upon a court-approved form and in accordance with the

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instructions approved by the Court. Id; S. D. CAL. CivLR HC.2(b). Presently, Petitioner

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has not submitted an application for writ of habeas corpus on a court-approved form.

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FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent.

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On federal habeas, a state prisoner must name the state officer having custody of him as

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the respondent. Ortiz-Sandoval v. Gomez. 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule

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2(a), 28 U.S.C. foil. § 2254). “Typically, that person is the warden of the facility in which

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the petitioner is incarcerated.” Id Federal courts lack personal jurisdiction when a habeas

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petition fails to name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254

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do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the

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warden of the institution in which the petitioner is incarcerated ... or the chief officer in

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charge of state penal institutions.’” Id (quoting Rule 2(a), 28 U.S.C. foil. § 2254 advisory

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committee’s note). If “a petitioner is in custody due to the state action he is challenging,

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‘[t]he named respondent shall be the state officer who has official custody of the petitioner

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(for example, the warden of the prison).”’ Id. (quoting Rule 2, 28 U.S.C. foil. § 2254

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advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ

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of] habeas corpus against the State under . . . [whose] authority ... the petitioner is in

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custody.

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respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement

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exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the

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person who will produce “the body” if directed to do so by the Court. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval. 81 F.3d at 895.

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III

The actual person who is [the] custodian [of the petitioner] must be the

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17cv1107 -BEN (JLB)

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Here, Petitioner has incorrectly named “Judge Timothy R. Walsh” as Respondent.

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In order for this Court to entertain the Petition filed in this action, Petitioner must name the

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warden in charge of the state correctional facility in which Petitioner is presently confined

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or the Director of the California Department of Corrections and Rehabilitation.

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Brittingham v. United States. 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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CONCLUSION AND ORDER

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Accordingly, the Court DISMISSES the Petition without prejudice due to

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Petitioner’s failure to satisfy the filing fee requirement, failure to use a court-approved

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petition form, and failure to name a proper respondent. If Petitioner wishes to proceed with

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this case, he must submit, no later than August 14. 2017. a copy of this Order with the

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$5.00 fee or with adequate proof of his inability to pay the fee and file a First Amended

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Petition which cures the defects identified above. The Clerk of Court shall send a blank

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Southern District of California In Forma Pauperis Application and a blank Southern

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District of California amended petition form to Petitioner along with a copy of this Order.

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IT IS SO ORDERED.

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Dated: June

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, 2017
United States District Judge

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17cv1107 -

BEN (JLB)