Opinion
2:10-cv-01832-JCM-RJJ.
May 9, 2011
ORDER
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Donny Cooper, who is represented by counsel. Before the court is respondents' motion to dismiss for lack of personal jurisdiction. (ECF No. 5).
Respondents point out that petitioner has failed to name his custodian as respondent to the habeas petition. Respondents seek summary dismissal of the petition.
Respondents discuss the issue of exhaustion in a footnote within the motion to dismiss. The court declines to address the exhaustion issue at this juncture, as it was not properly presented in the instant motion to dismiss for lack of personal jurisdiction.
A petitioner must name his custodian (state officer) as the respondent in a federal habeas petition. Rule 2(a), Rules Governing Section 2254 Proceedings; Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). If petitioner fails to name the proper respondent in his petition, the court may allow petitioner to amend his petition to name the correct respondent. See Stanley, 21 F.3d at 360.
In the instant case, petitioner has named the State of Nevada as respondent. Petitioner has completed his prison sentence and parole, but is subject to lifetime supervision as a sex offender. Petitioner is currently supervised by the Nevada Parole and Probation Office. Petitioner will be granted leave to file an amended caption page, naming the proper respondent(s), i.e., the state officers who currently have custody, control, or supervision over petitioner. After the filing of the amended caption page, the court will set a further scheduling order in this action.
IT IS THEREFORE ORDERED that respondents' motion to summarily dismiss the petition (ECF No. 5) is DENIED. IT IS FURTHER ORDERED that within twenty (20) days, petitioner SHALL FILE an amended caption page, naming the proper respondent.