Opinion · Court of Appeals for the Ninth Circuit
Mark Brittingham v. United States
982 F.2d 378
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1992-12-23
- Topic
- bankruptcy
holding that the warden of a California state prison was the proper respondent to federal habeas petition | holding that state prison warden was proper custodian and not United States Marshal who transported federal prisoners to the facility | noting that “[t]he proper respondent in a federal habeas corpus petition is the petitioner’s ‘immediate custodian’” | noting that a custodian “‘is the person having a day-to-day control over the prisoner . . . the only one who can produce the body of the petitioner’” | stating the correct respondent is normally the warden of the petitioner’s facility or the chief officer in charge of state penal institutions | stating 28 that the proper respondent in a federal habeas petition is petitioner’s immediate custodian | stating proper respondent in 8 federal habeas petition is petitioner's immediate custodian | stating proper respondent in federal habeas petition is petitioner’s 27 immediate custodian | stating proper respondent in federal habeas petition is petitioner’s immediate custodian | “The proper respondent in a federal habeas corpus petition is the petitioner’s 23 || ‘immediate custodian.’” | proper respondent in federal habeas action is petitioner’s immediate custodian, which is 23 defined as person having day-to-day control over petitioner and the only person who can produce 24 “the body” of petitioner
Citator
- Cited by
- 199 opinions
Brittingham appeals the district court’s dismissal of his petition for writ of habeas corpus. The court held that it lacked personal jurisdiction in this case. We affirm.
For a court to hear a petition for writ of habeas corpus, it must have jurisdiction over the prisoner or his custodian. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). Brittingham contends that, for the purposes of his petition, the U.S. Marshal for the District of Hawaii was his custodian, and therefore the district court in Hawaii had jurisdiction. This novel argument is not based on the facts.
The proper respondent in a federal habeas corpus petition is the petitioner’s “immediate custodian.” Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C.Cir.1986) (Bork, J., in chambers). A custodian “is the person having a day-to-day control over the prisoner. That person is the only one who can produce 'the body’ of the petitioner.” Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986) (Parole Commission is not custodian despite its power to release petitioner).
At the time Brittingham filed his petition, he was in custody in Alameda County Jail, a California State facility used for the detention of federal prisoners until their assignment to a federal prison by the Bureau of Prisons (“BOP”). Brittingham’s custodian, within the meaning of the habeas corpus statute, was the warden of the facility where he was confined. Id.; Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.1989) (warden is custodian for purposes of habeas corpus petition challenging execution of sentence).
*380 The U.S. Marshal for the District of Hawaii had been responsible for transporting Brittingham to California. Whether the same marshal would later transfer the prisoner to the BOP for confinement pursuant to his sentence is a question not now before us. In any event, the U.S. Marshal did not have “day-to-day control” over Brittingham and, for the purposes of a habeas corpus petition, does not qualify as Brittingham’s custodian. See Rheuark v. Wade, 608 F.2d 304, 306 (8th Cir.1979) (U.S. Marshal, who transported petitioner from prison to appear as witness in civil case, not custodian).
AFFIRMED.