Price v. Hartley

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA MARCEL D. PRICE, Case No. 3:22-cv-00775-GPC-KSC 11 Petitioner, ORDER DISMISSING CASE 12 vs. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND JAMES D. HARTLEY, et al., Respondents.

17 Petitioner, a state prisoner proceeding pro se, has paid the $5.00 filing fee and has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

19 FAILURE TO NAME A PROPER RESPONDENT 20 Review of the Petition reveals that Petitioner has failed to name a proper respondent.

21 On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id. 25 The warden is the typical respondent. However, “the rules following section 2254 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 1 committee’s note). If “a petitioner is in custody due to the state action he is challenging, || ‘[t]he named respondent shall be the state officer who has official custody of the petitioner ||(for example, the warden of the prison).’” Jd. (quoting Rule 2, 28 U.S.C. foll. § 2254 ||advisory committee’s note).

5 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ ||of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in ||custody. The actual person who is [the] custodian [of the petitioner] must be the ||respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement ||exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the || person who will produce “the body” if directed to do so by the Court. “Both the warden of 11 California prison and the Director of Corrections for California have the power to produce || the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

13 Here, Petitioner has incorrectly named “James D. Hartley” as Respondent. In order || for this Court to entertain the Petition filed in this action, Petitioner must name the warden |/in charge of the state correctional facility in which Petitioner is presently confined or the ||Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. || United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

18 CONCLUSION 19 Based on the foregoing, the Court DISMISSES this action without prejudice and || with leave to amend. To have this case reopened, Petitioner must, no later than August 8, 21 2022, file a First Amended Petition that cures the pleading deficiencies set forth above.

22 Clerk of Court shall include a blank First Amended Petition with this Order for || Petitioner’s convenience.

24 IT IS SO ORDERED.

25 ||Dated: June 2, 2022 <= United States District Judge