Mitchell v. Superior Court of San Diego

Filing 2

ORDER DISMISSING CASE Without Prejudice. The Court Dismisses the Petition without prejudice due to Petitioner's failure to name a proper respondent. To have this case reopened, Petitioner must file a First Amended Petition in conformance with this Order, no later than 04/30/2018. Signed by Judge William Q. Hayes on 03/05/2018.(Petitioner served copy of this Order and a blank 2254 petition via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM EDWARD MITCHELL,

Case No. 18cv0396 WQH (NLS)

Petitioner,

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ORDER DISMISSING CASE
WITHOUT PREJUDICE

v.
SUPERIOR COURT OF SAN DIEGO,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 and paid the filing fee.
FAILURE TO NAME A 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. foll. § 2254). 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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18cv0396 WQH (NLS)

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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 the “Superior Court of San Diego” as

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Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner

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must name the warden in charge of the state correctional facility in which Petitioner is

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presently confined or the Secretary of the California Department of Corrections and

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

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curiam).

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CONCLUSION

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Accordingly, the Court DISMISSES the Petition without prejudice due to

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Petitioner’s failure to name a proper respondent. To have this case reopened, Petitioner

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must file a First Amended Petition in conformance with this Order, no later than April

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30, 2018. For Petitioner’s convenience, the Clerk of Court shall attach to this Order a

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blank petition form.

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IT IS SO ORDERED.
Dated: March 5, 2018

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18cv0396 WQH (NLS)