Fink v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID FINK, Case No.: 21-cv-969-MMA (RBM) 12 ORDER DISMISSING CASE Petitioner, 13 WITHOUT PREJUDICE AND WITH v. LEAVE TO AMEND 14 STATE OF CALIFORNIA, 15 16 Respondent. 17 18 19 On May 21, 2021, David Fink (“Petitioner”), proceeding pro se, filed a petition for 20 writ of habeas corpus pursuant to 28 U.S.C. § 2254 and paid the $5.00 filing fee. 21 I. FAILURE TO NAME A PROPER RESPONDENT 22 A review of the Petition reveals that Petitioner has failed to name a proper 23 respondent. On federal habeas, a state prisoner must name the state officer having 24 custody of him as the respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th 25 Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal 26 jurisdiction when a habeas petition fails to name a proper respondent. See id. The 27 warden is the typical respondent. However, “the rules following section 2254 do not 28 specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden 1 of the institution in which the petitioner is incarcerated . . . or the chief officer in charge 2 of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 3 committee’s note). 4 If “a petitioner is in custody due to the state action he is challenging, ‘[t]he named 5 respondent shall be the state officer who has official custody of the petitioner (for 6 example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 7 advisory committee’s note). However, if a “petitioner is on probation or parole, he may 8 name his probation or parole officer ‘and the official in charge of the parole or probation 9 agency, or the state correctional agency, as appropriate.’” Id. (quoting Rule 2, 28 U.S.C. 10 foll. § 2254 advisory committee’s note). 11 Moreover, a long-standing rule in the Ninth Circuit holds “that a petitioner may not 12 seek [a writ of] habeas corpus against the State under . . . [whose] authority . . . the 13 petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must 14 be the respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This 15 requirement exists because a writ of habeas corpus acts upon the custodian of the state 16 prisoner, the person who will produce “the body” if directed to do so by the Court. 17 Here, Petitioner has incorrectly named the “State of California” as Respondent. 18 Because Petitioner is on parole, see Doc. No. 1 at 2 n.3, the proper respondents are his 19 parole officer and the official in charge of the parole agency. See Ortiz-Sandoval, 81 20 F.3d at 895. In California, the Director of the Department of Corrections is the official in 21 charge of the parole agency. See In re Lusero, 4 Cal. App. 4th 572, 576 (1992) (“During 22 the period of parole following incarceration, an inmate continues in the custody of the 23 department.”). Accordingly, because Petitioner has not named his parole agent or the 24 Secretary of the California Department of Corrections and Rehabilitation as Respondents, 25 the Court lacks jurisdiction over the Petition. 26 II. CONCLUSION 27 For the foregoing reasons, the Court DISMISSES this action without prejudice 28 and with leave to amend. If Petitioner wishes to proceed with this case, he must file a 1 || First Amended Petition that cures the deficiencies set forth above on or before July 16, 2 ||2021. The Court further DIRECTS the Clerk of Court to mail Petitioner a blank First 3 || Amended Petition form together with a copy of this Order. 4 IT IS SO ORDERED. 5 Dated: May 25, 2021 6 Miku lu - Ld tolls 7 HON. MICHAEL M. ANELLO g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28