Clive Wellington Kinlock v. State of Montana

56 F.3d 71, 1995 U.S. App. LEXIS 19884, 1995 WL 306875

Opinion

56 F.3d 71
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Clive Wellington KINLOCK, Petitioner-Appellant,
v.
STATE OF MONTANA, Respondent-Appellee.

No. 94-36135.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1995.*
Decided May 18, 1995.

Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.

MEMORANDUM**

Clive Wellington Kinlock, a Montana state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition for failure to exhaust his state remedies. The district court lacked jurisdiction because Kinlock failed to name his immediate custodian as a respondent. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, we vacate the district court's order denying Kinlock's Sec. 2254 petition and remand with instructions to dismiss for lack of jurisdiction unless Kinlock can timely amend his petition on remand to name the proper respondent. See id.

VACATED AND REMANDED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3