Nixon v. Vail

Filing 5

ORDER that Mr. Nixon amend his petition to name his immediate custodian and warden and the Washington Attorney General as Respondents, and shall provide the Court with sufficient copies of the first page of the Petition reflecting the properly named Respondents for service on or before 2/27/09; by Judge Karen L Strombom. (CMG; copy w/Petition sent to Petitioner)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1984). 28 U.S.C. § 2243 requires that writs are to be directed "to the person having custody of the person detained." The proper respondent in a federal habeas corpus petition is the petitioner's "immediate custodian." Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C.Cir. 1986). A custodian "is the person ORDER - 1 This habeas corpus petition has been referred to United States Magistrate Judge Karen L. Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Petitioner Larry Douglas Nixon seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. # 3. The Court notes that Mr. Nixon has failed to name the correct Respondent, thereby depriving this Court of personal jurisdiction. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. v. ELDON VAIL, Respondent. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA LARRY DOUGLAS NIXON, Petitioner, Case No. C09-5013 FDB/KLS ORDER TO AMEND PETITION

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having a day-to-day control over the prisoner. That person is the only one who can produce `the body' of the petitioner." Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir. 1986). Therefore, Mr. Nixon's custodian for purposes of his habeas corpus petition challenging the execution of his Washington state sentence, is the warden of the prison where he is currently confined. See, e.g., Brittingham v. United States, 982 F.2d 378 (9th Cir. 1992); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). Because Mr. Nixon is a Washington state prisoner housed in an out-of-state facility, he should also name the Washington Attorney General as a respondent. Accordingly, it is ORDERED: (1) Mr. Nixon shall amend his petition to name his immediate custodian and warden and the Washington Attorney General as Respondents, and shall provide the Court with sufficient copies of the first page of the Petition reflecting the properly named Respondents for service on or before February 27, 2009. (2) The Court Clerk is directed to send a copy of this Order and a form 28 U.S.C. § 2254 petition to Mr. Nixon, and to note this matter for the Court's February 27, 2009 calendar.

DATED this 30th day of January, 2009.

A

Karen L. Strombom United States Magistrate Judge

ORDER - 2