Engebretson v. US Attorney General

• Court: District Court, D. Nevada
• Decided: July 30, 2020
• Docket: 2:20-cv-01351
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

7 ZACHARIAH TAUB ENGEBRETSON, Case No. 2:20-cv-01351-RFB-EJY

8 Petitioner, v. ORDER 9 U.S. ATTORNEY GENERAL, 10 Respondent. 11 12 13 Petitioner is a federal prisoner proceeding pro se with a Petition for Writ of Habeas Corpus 14 pursuant to 28 U.S.C. § 2241. His petition was filed in this court on July 21, 2020. 15 The Rules Governing Section 2254 Cases in the United States District Courts (Habeas 16 Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas 17 Rule 1(b). Habeas Rule 4 requires courts to make a preliminary review of each Petition for Writ 18 of Habeas Corpus. Courts must summarily dismiss a petition "[i]f it plainly appears from the 19 petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . 20 ." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Hendricks v. Vasquez, 21 908 F.2d 490, 491 (9th Cir. 1990). 22 In this case, Petitioner has named only the “U.S. Attorney General” as a Respondent. The 23 petition indicates that Petitioner is incarcerated at the Nevada Southern Detention Center in 24 Pahrump, Nevada. The Court is informed and believes that the warden at that facility is Brian 25 Koehn. 26 Title 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the 27 district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon 1 |} 410 ULS. 484, 494-495 (1973) (citation omitted). Where a prisoner files an action under section 2 || 2241, “‘the prisoner must name the warden of the penitentiary where he is confined as a 3 || respondent.’” Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir. 1998) (quoting Dunne v. 4 || Henman, 875 F.2d 244, 249 (9th Cir. 1989)). “Failure to name the petitioner's custodian as a 5 || respondent deprives federal courts of personal jurisdiction.” Stanley v. California Supreme Court, 6 || 21 F.3d 359, 360 (9th Cir. 1994) (citations omitted). The local custodian, or warden of the 7 || penitentiary where a prisoner is confined, constitutes the custodian who must be named in the 8 || petition, and the petition must be filed in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 9 || 426, 446-47 (2004); Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). 10 Here, because Petitioner has failed to name his custodian as the respondent, the petition in 11 || its current form is subject to dismissal for lack of jurisdiction. However, the Court will give 12 || Petitioner the opportunity to cure this defect by amending the petition to name a proper respondent, 13 || such as the warden of his facility. See In re Morris, 363 F.3d 891, 893-94 (9th Cir. 2004). In the 14 || interest of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner may 15 || file a motion entitled "Motion to Amend the Petition to Name a Proper Respondent," wherein 16 || Petitioner may name the proper respondent in this action. 17 Accordingly, Petitioner is granted 30 days from the date of this order within which to file 18 || a motion to amend the instant petition and name a proper respondent. Failure to amend the petition 19 || and state a proper respondent will result in dismissal of the petition for lack of jurisdiction. 20 IT IS SO ORDERED. 21 DATED this 30" day of July, 2020. 09 mv

RICHARD F. BOUDW ARE 24 UNITED ST? DISTRICT JUDGE 25 26 27 28