Cross v. Pelican Bay State Prison

78 F. App'x 614

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2003
• Docket: No. 02-17143; D.C. No. CV-98-00115-GEB
• Status: Published

Opinion

MEMORANDUM

**

Richard M. Cross appeals the district court’s judgment denying his 28 U.S.C. § 2254 petition for writ of habeas corpus. We vacate and remand with instructions to dismiss for lack of personal jurisdiction.

“A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). “Failure to name the correct respondent destroys personal jurisdiction.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996).

To satisfy the “state officer having custody” requirement, a California state prisoner filing for federal habeas relief must name either the warden of the prison or the California Director of Corrections. See id. at 895-96. Cross failed to name either the warden or the Director of Corrections as a respondent in his petitions filed in district court, and therefore the district court lacked jurisdiction. Accordingly, we vacate the dismissal of Cross’ 28 U.S.C. § 2254 petition and remand with instructions to dismiss for lack of jurisdiction unless Cross timely amends his petition to name the correct party as a respondent.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.