Robert A. Hungerschafer v. State of California Attorney General for the State of California , 59 F.3d 175 ( 1995 )

59 F.3d 175
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Robert A. HUNGERSCHAFER, Petitioner-Appellant,
v.
STATE OF CALIFORNIA; Attorney General for the State of
California, Respondents-Appellees.

No. 94-55928.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1995.*
Decided June 12, 1995.

Before: O'SCANNLAIN, LEAVY, and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Robert A. Hungerschafer appeals pro se the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2254. Hungerschafer contends that the district court erred by failing to hold an evidentiary hearing and permit discovery on his claims that his attorney was ineffective during his guilty plea to driving while under the influence of alcohol and at sentencing. We vacate and remand with instructions to dismiss for lack of personal jurisdiction.

3

"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) (citing Rule 2(a), 28 U.S.C. foll. Sec. 2254). "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Id. at 360.

4

In his habeas petition, Hungerschafer named the State of California and the Attorney General of California as the sole respondents. Because neither of these parties was Hungerschafer's immediate custodian at the time he filed his petition, the district court lacked jurisdiction to consider Hungerschafer's section 2254 petition. See Rule 2(a), 28 U.S.C. foll. Sec. 2254; Stanley, 21 F.3d at 360. Accordingly, we vacate the district court's denial and remand with instructions to dismiss for lack of jurisdiction unless Hungerschafer can timely amend his petition to name the correct party as respondent. See Stanley, 21 F.3d at 360.

5

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