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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1 FILED 2 If JUN 20 PH 12= 19 3 4 DEPUtY •:«V 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17cv1107 - BEN (JLB) MARTIN MANZO ORTEGA, Petitioner, 12 13 v. 14 ORDER DISMISSING CASE WITHOUT PREJUDICE JUDGE TIMOTHY R. WALSH, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254. The Petition is subject to dismissal because 19 Petitioner has failed to satisfy the filing fee requirement, has failed to use a court-approved 20 petition form, and has failed to name a proper Respondent. 21 FAILURE TO SATISFY FILING FEE REQUIREMENT 22 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 23 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 24 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case 25 without prejudice. See Rule 3(a), 28 U.S.C. foil. § 2254. 26 FAILURE TO USE PROPER FORM 27 Additionally, a Petition for Writ of Habeas Corpus must be submitted in accordance 28 with the Local Rules of the United States District Court for the Southern District of l 17cv1107 - BEN (JLB) / 1j/ California. See Rule 2(d), 28 U.S.C. foil. § 2254. In order to comply with the Local Rules, 2 the petition must be submitted upon a court-approved form and in accordance with the 3 instructions approved by the Court. Id; S. D. CAL. CivLR HC.2(b). Presently, Petitioner 4 has not submitted an application for writ of habeas corpus on a court-approved form. 5 FAILURE TO NAME PROPER RESPONDENT 6 Review of the Petition reveals that Petitioner has failed to name a proper respondent. 7 On federal habeas, a state prisoner must name the state officer having custody of him as 8 the respondent. Ortiz-Sandoval v. Gomez. 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 9 2(a), 28 U.S.C. foil. § 2254). “Typically, that person is the warden of the facility in which 10 the petitioner is incarcerated.” Id Federal courts lack personal jurisdiction when a habeas 11 petition fails to name a proper respondent. See id. 12 The warden is the typical respondent. However, “the rules following section 2254 13 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 14 warden of the institution in which the petitioner is incarcerated ... or the chief officer in 15 charge of state penal institutions.’” Id (quoting Rule 2(a), 28 U.S.C. foil. § 2254 advisory 16 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 17 ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 18 (for example, the warden of the prison).”’ Id. (quoting Rule 2, 28 U.S.C. foil. § 2254 19 advisory committee’s note). 20 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ 21 of] habeas corpus against the State under . . . [whose] authority ... the petitioner is in 22 custody. 23 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 24 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 25 person who will produce “the body” if directed to do so by the Court. “Both the warden 26 of a California prison and the Director of Corrections for California have the power to 27 produce the prisoner.” Ortiz-Sandoval. 81 F.3d at 895. 28 III The actual person who is [the] custodian [of the petitioner] must be the 2 17cv1107 -BEN (JLB) A 1 ■'{ Here, Petitioner has incorrectly named “Judge Timothy R. Walsh” as Respondent. 2 In order for this Court to entertain the Petition filed in this action, Petitioner must name the 3 warden in charge of the state correctional facility in which Petitioner is presently confined 4 or the Director of the California Department of Corrections and Rehabilitation. 5 Brittingham v. United States. 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 6 CONCLUSION AND ORDER 7 Accordingly, the Court DISMISSES the Petition without prejudice due to 8 Petitioner’s failure to satisfy the filing fee requirement, failure to use a court-approved 9 petition form, and failure to name a proper respondent. If Petitioner wishes to proceed with 10 this case, he must submit, no later than August 14. 2017. a copy of this Order with the 11 $5.00 fee or with adequate proof of his inability to pay the fee and file a First Amended 12 Petition which cures the defects identified above. The Clerk of Court shall send a blank 13 Southern District of California In Forma Pauperis Application and a blank Southern 14 District of California amended petition form to Petitioner along with a copy of this Order. 15 16 17 IT IS SO ORDERED. 'fi- Dated: June // , 2017 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3 17cv1107 - BEN (JLB)

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