United States District Court, D. New Jersey
October 5, 2005.
DANIEL POWELL, Petitioner,
ATTORNEY GENERAL PETER C. HARVEY, Respondent.
The opinion of the court was delivered by: STANLEY CHESLER, District Judge
OPINION and ORDER
Petitioner, an offender convicted in the Superior Court of New
Jersey, Law Division, Ocean County, has submitted a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254.*fn1 Petitioner
currently is confined at South Woods State Prison pursuant to the
challenged conviction. It does not appear that the Petition names
a proper respondent. Among other things, 28 U.S.C. § 2242 requires the petition for
a writ of habeas corpus to allege "the name of the person who has
custody over [the petitioner]." See also Rule 2, Rules
Governing § 2254 Cases in the United States District Court. As
explained in the Advisory Committee Notes following Rule 2, an
applicant in jail, prison, or other actual physical restraint
shall name as respondent "the state officer who has official
custody of the petitioner (for example, the warden of the
prison)," (2) an applicant who is on probation or parole due to
the state judgment he is attacking shall name as the respondent
"the particular probation or parole officer responsible for
supervising the applicant, and the official in charge of the
parole or probation agency, or the state correctional agency, as
appropriate," and (3) an applicant in custody in any other manner
due to the state action he seeks relief from shall name as
respondent "the attorney general of the state wherein such action
was taken." Rule 2, Rules Governing § 2254 Cases, Advisory
Committee Notes (1976 Adoption).
In the Petition, Petitioner alleges that he is confined at
South Woods State Prison pursuant to the challenged conviction.
Under the facts as alleged, the Attorney General is not a proper
respondent to this Petition.
A federal district court can dismiss a habeas corpus petition
if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas,
517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 34, 45 (3d
Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also
28 U.S.C. § 2243.
It appearing that Petitioner has failed to name as a respondent
an indispensable party;
IT IS on this 4th day of October, 2005,
ORDERED that Petitioner may file an amended petition naming a
proper respondent, or clarifying his custody status if he
contends that the Attorney General is a proper respondent, within
45 days of the date this Order is entered; and it is further
ORDERED that if Petitioner does not file such an amended
petition within the above 45-day period, the Court will enter an
Order dismissing the Petition without prejudice for failure to
name an indispensable party.
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