John E. Neal v. Attorney General of the State of Arizona, William Gastelum, Warden

944 F.2d 909, 1991 U.S. App. LEXIS 27139, 1991 WL 180085

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 1991
• Docket: 89-16640
• Status: Unpublished

Opinion

944 F.2d 909

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
John E. NEAL, Petitioner-Appellant,
v.
ATTORNEY GENERAL OF the STATE OF ARIZONA, William Gastelum,
Warden, Respondents-Appellees.

No. 89-16640.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 1991.*
Decided Sept. 16, 1991.

Before CANBY and KOZINSKI, Circuit Judges, and HUFF** District Judge.

MEMORANDUM***

Neal's habeas corpus petition failed to name as respondent the party having custody of him. His failure to name that party is a fatal defect. King v. California, 356 F.2d 950 (9th Cir.1966). The defect may be cured by amending the petition. Ashley v. Washington, 394 F.2d 125, 125 n. 1 (9th Cir.1968). The district court twice instructed Neal that he had to amend his petition to name his parole or probation officer, the person having custody over him, as a respondent. Neal failed to follow the court's directives. The district court accordingly did not err in dismissing Neal's petition and in denying his request for rehearing.

AFFIRMED.

* The panel unanimously finds the case appropriate for submission without argument pursuant to Fed.R.App. 34(a) and Ninth Circuit Rule 34-4

** The Honorable Marilyn Huff, United States District Judge for the Southern District of California, sitting by designation

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