Luckett v. San Diego Superior Court ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH RUSSELL LUCKETT Case No.: 19cv2206 CAB (MDD) 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 SAN DIEGO SUPERIOR COURT, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY FILING FEE REQUIREMENT 20 Petitioner has failed to either pay the $5.00 filing fee or move to proceed in forma 21 pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing fee 22 or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 FAILURE TO NAME THE PROPER RESPONDENT 24 Review of the Petition reveals that Petitioner has failed to name a proper 25 respondent. On federal habeas, a state prisoner must name the state officer having 26 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 27 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 28 when a habeas petition fails to name a proper respondent. See id. 1 The warden is the typical respondent. However, “the rules following section 2254 2 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 3 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 4 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 5 advisory committee’s note). If “a petitioner is in custody due to the state action he is 6 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 7 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 8 foll. § 2254 advisory committee’s note). 9 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 10 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 11 in custody. The actual person who is [the] custodian [of the petitioner] must be the 12 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 13 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 14 person who will produce “the body” if directed to do so by the Court. “Both the warden 15 of a California prison and the Director of Corrections for California have the power to 16 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 17 Here, Petitioner has incorrectly named “San Diego Superior Court” as Respondent. 18 In order for this Court to entertain the Petition filed in this action, Petitioner must name 19 the warden in charge of the state correctional facility in which Petitioner is presently 20 confined or the Director of the California Department of Corrections. Brittingham v. 21 United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 22 CONCLUSION 23 For the foregoing reasons, the Court DISMISSES the Petition without prejudice 24 and with leave to amend. To have this case reopened, Petitioner must, no later than 25 February 27, 2020: (1) pay the $5.00 filing fee or submit adequate proof of his inability to 26 pay the fee; and (2) file a First Amended Petition that cures the pleading deficiencies 27 outlined in this Order. The Clerk of Court is directed to send a blank In Forma 28 1 || Pauperis Application and a blank 28 U.S.C. § 2254 First Amended Petition form to 2 || Petitioner together with a copy of this Order. 3 IT IS SO ORDERED. 4 Dated: December 10, 2019 € ZL 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28