Dick Sky v. Bruno Stolc , 497 F. App'x 696 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DICK SKY, No. 10-35473
Petitioner - Appellant, D.C. No. 3:08-cv-00152-JWS
v.
MEMORANDUM *
BRUNO STOLC,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted August 29, 2012 **
Anchorage, Alaska
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Dick Sky appeals the district court’s dismissal with prejudice of his 28
U.S.C. § 2254 habeas petition for failure to name the proper respondent. Sky
named as respondent Bruno Stolc, the warden of the private correctional facility
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
where he was being held. Stolc filed a motion to dismiss for lack of personal
jurisdiction, arguing that he was not the proper respondent because he was not a
“state officer who has custody” as required by the Rules Governing [28 U.S.C.]
§ 2254 Cases. The district court dismissed Sky’s petition with prejudice after Sky
failed to amend to name the proper respondent, Alaska Commissioner of
Corrections Joseph Schmidt. Whether a habeas petitioner has named the proper
respondent is reviewed de novo. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th
Cir. 1996). Failure to name the proper respondent strips the district court of
personal jurisdiction. Id.Rule 2(a) of the Rules Governing § 2254 Cases states 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.” Sky concedes that Stolc is not a
state officer, but argues that Stolc remains the proper respondent because Stolc had
custody of Sky. However, Alaska Statute § 33.30.051 states that “[a] person
convicted of an offense against the state shall be committed to the custody of the
commissioner.” See Ortiz-Sandoval, 81 F.3d at 895 (holding that the proper
respondent in a habeas petition depends in part on who has official custody of
prisoners in the penal system of the state in question). Although Stolc had physical
custody of Sky at the time Sky filed his habeas petition, Stolc is not a state officer
and, thus, is not the proper respondent.
The dismissal with prejudice of Sky’s habeas petition for failure to name the
proper respondent is AFFIRMED.
All pending motions are DENIED.