Howard v. Unknown

Filing 2

ORDER DISMISSING CASE Without Prejudice. The Court dismisses this action without prejudice because Petitioner has failed to name a proper respondent, and failed to allege exhaustion of state judicial remedies. To have this case reopened, Petitione r must submit, no later than 11/30/2017, 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 which cures the pleading defects identified above. Signed by Judge Larry Alan Burns on 9/29/2017. (All non-registered users served via U.S. Mail Service)(copy of IFP Application and Amended Petition Form sent to Petitioner)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL HOWARD,

Case No.: 17cv1949-LAB (JLB)
Petitioner,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

v.
UNKNOWN,

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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. (ECF No. 1.) The Petition is subject to dismissal

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without prejudice because Petitioner has failed to satisfy the filing fee requirement, and

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failed to name a proper respondent.

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FAILURE TO SATISFY FILING FEE REQUIREMENT

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Because this Court cannot proceed until Petitioner has either paid the $5.00 filing

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fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without

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prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254.

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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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17cv1949-LAB (JLB)

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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. foll. § 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. foll. § 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. foll. § 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.

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

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Here, Petitioner has incorrectly named “People” as Respondent. In order for this

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Court to entertain the Petition filed in this action, Petitioner must name the warden in

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

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Director of the California Department of Corrections and Rehabilitation. Brittingham v.

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

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Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal

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of a habeas petition “[i]f it plainly appears from the face of the petition and any attached

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exhibits that the petitioner is not entitled to relief in the district court . . .” Rule 4, 28 U.S.C.
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17cv1949-LAB (JLB)

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foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently entitled

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to federal habeas relief because he has not satisfied the filing fee requirement and has not

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named a proper respondent.

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CONCLUSION AND ORDER

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Based on the foregoing, the Court DISMISSES this action without prejudice

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because Petitioner has failed to name a proper respondent, and failed to allege exhaustion

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of state judicial remedies. To have this case reopened, Petitioner must submit, no later

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than November 30, 2017, a copy of this Order with the $5.00 fee or with adequate proof

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of his inability to pay the fee and file a First Amended Petition which cures the pleading

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defects identified above. The Clerk of Court shall send a blank Southern District of

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

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

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IT IS SO ORDERED.
Dated: September 29,, 2017
Hon. Larry Alan Burns
United States District Judge

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17cv1949-LAB (JLB)