Davis v. State of California ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAVIN B. DAVIS, Case No.: 19cv2263-LAB (LL) 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 CALIFORNIA ATTORNEY GENERAL, 15 Respondent. 16 17 Petitioner, a California probationer challenging a state conviction arising from a 18 guilty plea, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 The Petition is subject to dismissal without prejudice due to Petitioner’s failure to sign the 20 Petition under penalty of perjury, failure to use a court-approved petition form and failure 21 to name a proper Respondent. 22 FAILURE TO SIGN PETITION UNDER PENALTY OF PERJURY 23 Rule 2(c) of the Rules Governing Section 2254 Cases provides that “[t]he petition 24 must be printed, typewritten or legibly handwritten; and be signed under penalty of perjury 25 by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. 26 § 2242.” Rule 2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here, Petitioner has not 27 signed the Petition under penalty of perjury, but merely in a manner he contends “complies 28 with the requirements of [Federal Rule of Civil Procedure] 11.” (ECF No. 1 at 12.) 1 FAILURE TO USE PROPER FORM 2 Additionally, a Petition for a Writ of Habeas Corpus must be submitted in 3 accordance with the Local Rules of the United States District Court for the Southern 4 District of California. See Rule 2(d), 28 U.S.C. foll. § 2254. In order to comply with the 5 Local Rules, the petition must be submitted upon a court-approved form and in accordance 6 with the instructions approved by the Court. Id.; S. D. Cal. CivLR HC.2(b). Petitioner has 7 not submitted his application for writ of habeas corpus on a court-approved form. 8 FAILURE TO NAME PROPER RESPONDENT 9 Review of the Petition reveals that Petitioner has failed to name a proper respondent. 10 On federal habeas, a state prisoner must name the state officer having custody of him as 11 the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 12 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas 13 petition fails to name a proper respondent. See id. 14 If a “petitioner is on probation or parole, he may name his probation or parole officer 15 ‘and the official in charge of the parole or probation agency, or the state correctional 16 agency, as appropriate.’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s 17 note). Petitioner indicates he is currently on probation. (ECF No. 1 at 8.) 18 However, rather than naming his probation officer or the official in charge of his 19 probation agency, he names the California Attorney General as Respondent. “If the 20 petitioner is not yet in custody – but may be subject to future custody – under the state- 21 court judgment being contested, the petition must name as respondents both the officer 22 who has current custody and the attorney general of the state where the judgement was 23 entered.” Rule 2 (b), 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to have 24 named the Attorney General as a respondent in this action. In order for this Court to 25 entertain a Petition for Writ of Habeas Corpus, Petitioner must name the person who will 26 produce “the body” if directed to do so by the Court. Because Petitioner is on probation, 27 proper respondents are his probation officer and the official in charge of the probation 28 agency, not the California Attorney General. See Ortiz-Sandoval, 81 F.3d at 894. 1 CONCLUSION AND ORDER 2 For the foregoing reasons, the Petition is DISMISSED without prejudice. To have 3 ||this case reopened, Petitioner must submit, no later than January 6, 2020, a First 4 || Amended Petition which cures the defects identified in this Order. The Clerk of Court 5 || shall send a blank Southern District of California amended petition form to Petitioner along 6 || with a copy of this Order. 7 IT IS SO ORDERED. 8 || Dated: December 3, 2019 lau 44 4 Zn 9 Hon. Larry Alan Burns . Chief United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28