Hunter v. State of North Dakota

Filing 8

ORDER: Petitioner shall have until 12/13/2021 to file an amended petition. By Magistrate Judge Clare R. Hochhalter. (BG)

Case 1:21-cv-00197-CRH Document 8 Filed 11/18/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Ashley Kenneth Hunter,
Petitioner,
vs.
State of North Dakota,
Respondent.

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ORDER GRANTING PETITIONER
LEAVE TO FILE AMENDED HABEAS
PETITION
Case No. 1:21-cv-197

Petitioner Ashley Kenneth Hunter (“Hunter”) is presently incarcerated at the North Dakota
State Penitentiary. He initiated the above entitled action on October 25, 2021, by filing with the
court a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.”
(Doc. No. 1).
Rule 4 of the Rules Governing Section 2254 Cases requires the Court to promptly examine
a habeas petition upon its filing and either (1) dismiss it if it plainly appears that the petitioner is not
entitled to relief, or (2) order the respondent to file an answer or otherwise respond within a fixed
time.
Rule 2(a) of the Rules Governing Section 2254 Cases provides that “[i]f the petitioner is
currently in custody under a state-court judgment, the petition must name as respondent the state
officer who has custody.” In habeas corpus challenges to present physical confinement, the default
rule is that the proper respondent is the warden of the facility where the prisoner is being held.
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2005); see Piercy v. Parratt, 579 F.2d 470, 472 (8th
Cir.1978) (finding that a habeas petition attacking the revocation of the petitioner's parole was
“procedurally flawed” because he failed to name his custodian, the warden of the state prison where

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Case 1:21-cv-00197-CRH Document 8 Filed 11/18/21 Page 2 of 2

he was incarcerated).
Here, Hunter is challenging his present physical confinement and has named the State of
North Dakota as the respondent. As the State is not a proper respondent, the Court will afford
Hunter an opportunity to amend his petition. Rule 2(a) of the Rules Governing Section 2254; see
also 28 U.S.C. § 2242; Bridges v. Chambers, 425 F.3d 1048, 1050 (7th Cir. 2005) (“Some things
are clear. One is that the ‘state’ is not a proper respondent . . . This is not only because the state has
sovereign immunity from suit in federal court . . .and not only because Rule 2(a) is explicit that the
‘state officer’ having custody of the petitioner is the proper respondent. There is also the practical
consideration that designating the ‘state’ does not identify an official with actual authority to release
the prisoner, and the designation could create confusion with respect to service and to notice
generally.” (internal citations omitted)); see e.g., Farmer v. Nebraska, No. 4:21CV3012, 2021 WL
1599380, at *2 (D. Neb. Apr. 23, 2021) (warning petitioner that his failure to file an amended
petition that was not signed under penalty of perjury and did not name a proper respondent was
subject to dismissal without prejudice); Longs v. Jacobsens, No. 4:18CV3120, 2018 WL 11219552,
at *1 (D. Neb. Oct. 9, 2018) (deeming an unsign habeas petition that failed to name a proper
respondent as deficient on initial review and granting petitioner leave to file an amended habeas
petition addressing these deficiencies).
Accordingly, Hunter shall have until December 13, 2021, to file an amended petition naming
a proper respondent.
IT IS SO ORDERED.
Dated this 18th day of November, 2021.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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