1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BERTHO PAYTON GAUTHIER, Case No.: 21-CV-1706 JLS (WVG)

12 Petitioner,

ORDER DISMISSING CASE

13 v. WITHOUT PREJUDICE AND

WITH LEAVE TO AMEND

14 UNKNOWN, 15 Respondent. 16 17 Petitioner Bertho Payton Gauthier, a state prisoner proceeding pro se, has paid the 18 $5.00 filing fee and has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254. ECF No. 1. Review of the Petition reveals that Petitioner has failed to name a 20 proper respondent. On federal habeas, a state prisoner must name the state officer having 21 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 22 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 23 when a habeas petition fails to name a proper respondent. See id. 24 The warden is the typical respondent. However, “the rules following section 2254 25 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 26 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 27 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory 28 committee’s note). If “a petitioner is in custody due to the state action he is challenging, 1 || ‘[t]he named respondent shall be the state officer who has official custody of the petitioner 2 ||(for example, the warden of the prison).’” Jd. (quoting Rule 2, 28 U.S.C. foll. § 2254 3 advisory committee’s note). 4 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ 5 ||of] habeas corpus against the State under . . . [whose] authority .. . the petitioner is in 6 ||custody. The actual person who is [the] custodian [of the petitioner] must be the 7 ||respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 8 ||exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 9 || person who will produce “the body” if directed to do so by the Court. “Both the warden 10 a California prison and the Director of Corrections for California have the power to 11 || produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 12 Here, Petitioner has not named a Respondent. In order for this Court to entertain the 13 Petition filed in this action, Petitioner must name the warden in charge of the state 14 correctional facility in which Petitioner is presently confined or the Director of the 15 California Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 16 || (9th Cir. 1992) (per curiam). 17 Based on the foregoing, the Court DISMISSES this action without prejudice and 18 || with leave to amend. To have this case reopened, Petitioner must, no later than December 19 2021, file a First Amended Petition that cures the pleading deficiencies set forth above. 20 || The Clerk of the Court shall mail a blank First Amended Petition Pursuant to 28 U.S.C. 21 || § 2254 form to Petitioner together with a copy of this Order. 22 IT IS SO ORDERED. 23 ||Dated: October 15, 2021 tt f Le 24 on. Janis L. Sammartino 25 United States District Judge 26 27 28