Wine v. Bd. of Parole Hearings

Full title: KENDRICK LAMOUNT WINE, Petitioner, v. BOARD OF PAROLE HEARINGS, Respondent.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: May 11, 2016

Case No. 16cv0969 BEN (RBB) (S.D. Cal. May. 11, 2016)

Opinion

Case No. 16cv0969 BEN (RBB)

05-11-2016

KENDRICK LAMOUNT WINE, Petitioner, v. BOARD OF PAROLE HEARINGS, Respondent.

HON. ROGER T. BENITEZ United States District Judge

ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

Petitioner, a prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and has paid the requisite filing fee.

FAILURE TO NAME A PROPER RESPONDENT

Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id.

The warden is the typical respondent. However, "the rules following section 2254 do not specify the warden." Id. "[T]he 'state officer having custody' may be 'either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.'" Id. (quoting advisory committee notes to Rule 2(a), 28 U.S.C. foll. § 2254). If "a petitioner is in custody due to the state action he is challenging, '[t]he named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison).'" Id. (quoting advisory committee notes to Rule 2, 28 U.S.C. foll. § 2254).

Here, Petitioner has incorrectly named "Board of Parole Hearings," as Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

CONCLUSION

Accordingly, the Court DISMISSES the Petition without prejudice due to Petitioner's failure to name a proper respondent. To have this case reopened, Petitioner must file a First Amended Petition no later than June 27, 2016 , in conformance with this Order. (A blank petition form is included with this Order for Petitioner's convenience.)

IT IS SO ORDERED. Dated: May 11, 2016

/s/_________

HON. ROGER T. BENITEZ

United States District Judge