81 F.3d 891 (9th Cir. 1996), 94-16337, Ortiz-Sandoval v. Gomez

Docket Nº:94-16337.
Citation:81 F.3d 891
Party Name:D.A.R. 4438, 96 Daily Journal D.A.R. 5369 Jose ORTIZ-SANDOVAL, Petitioner-Appellant, v. James GOMEZ, Director of Corrections for the State of California, Respondent-Appellee.
Case Date:April 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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81 F.3d 891 (9th Cir. 1996)

D.A.R. 4438,

96 Daily Journal D.A.R. 5369

Jose ORTIZ-SANDOVAL, Petitioner-Appellant,


James GOMEZ, Director of Corrections for the State of

California, Respondent-Appellee.

No. 94-16337.

United States Court of Appeals, Ninth Circuit

April 17, 1996

Argued and Submitted March 11, 1996.

As Amended May 8, 1996.

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[Copyrighted Material Omitted]

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Jose Ortiz-Sandoval, pro se, Vacaville, California, and Jeffrey L. Bleich, Munger, Tolles & Olson, San Francisco, California, for petitioner-appellant.

Sharon G. Birenbaum, Deputy Attorney General, San Francisco, California, for respondent-appellee.

On Appeal From the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding, D.C. No. CV-92-20580 RMW PVT.

Before: BEEZER and HAWKINS, Circuit Judges, and QUACKENBUSH, District Judge. [*]


BEEZER, Circuit Judge:

Jose Ortiz-Sandoval appeals the district court's denial of his petition for writ of habeas corpus. We address the question whether his naming of the California Director of Corrections rather than the warden of the prison where he is incarcerated destroys personal jurisdiction. We hold that the naming of the Director of Corrections does not destroy personal jurisdiction. On the merits, we affirm in part and remand in part.


On November 17, 1989 in the Superior Court for Santa Clara County, a jury found Ortiz-Sandoval guilty of first degree murder in the shooting death of Enrique Tello. The trial court sentenced him to 25 years to life in prison.

Ortiz-Sandoval confessed to shooting and killing Tello. Tello lived in San Jose with Raul Chapina Gomez, Annie Fulson and Felipe Chapina Gomez. Ortiz-Sandoval had previously resided at the house but moved out two or three months prior to the shooting. One month before the shooting, Tello and Ortiz-Sandoval had an argument over the telephone bill. On October 8, 1988 at 11 p.m., the argument escalated into a fistfight. Ortiz-Sandoval left the house, then returned, breaking the window on the front door with his hand in order to gain entry. He and the others searched for his car keys, and he again left the house. Raul Chapina and Tello were talking with their backs to the front door when a shot fired from outside the house struck Tello in the back, killing him.

Relying on information given them by the other roommates, police located Ortiz-Sandoval's truck at 12:40 a.m. near a house on Sanders Street in San Jose. They learned from the occupants of the house that Ortiz-Sandoval lived in the attached garage, which had been converted to an apartment. At 3:30 a.m., discovering the key in the door, police entered the apartment without a warrant and found Ortiz-Sandoval and his brother asleep. They arrested Ortiz-Sandoval and performed a protective sweep of the apartment, finding a shotgun in an opening in the ceiling near his bed. Ortiz-Sandoval later signed a consent to search form.

Before trial, Ortiz-Sandoval moved to suppress the shotgun found in the attic space, as well as his subsequent confession and other pieces of evidence. Defense counsel based her motion on the failure of the police to knock and announce and on the impropriety of the protective sweep. The trial court denied the motion, finding that Ortiz-Sandoval's known possession of a shotgun and the shooting of Tello through a door provided a basis for the police to enter silently without knocking or announcing. Relying on the testimony of Officer McLaren that he had been informed that two or three persons might be

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in the garage apartment, the court found the protective sweep justified. Defense counsel asked McLaren the name of the officer who told him there could be three people inside but failed to object to his testimony or to pursue the matter further.

At trial, the court admitted evidence that Ortiz-Sandoval had called Annie Fulson's sister and threatened to kill Raul Chapina and Annie Fulson when he got out of jail. A California appellate court upheld the conviction and denied habeas relief. The California Supreme Court denied review.

On September 9, 1992, Ortiz-Sandoval filed a petition for writ of habeas corpus in U.S. District Court. The court issued an order to show cause, finding that Ortiz-Sandoval had stated cognizable claims of ineffective assistance of counsel and due process violations. The court dismissed the claims that were based solely on violations of California law. After receiving a response from the State, the district court entered an order denying the petition. Ortiz-Sandoval appeals. We have jurisdiction pursuant 28 U.S.C. §§ 1291 and 2253.


In his petition, Ortiz-Sandoval named California Director of Corrections James Gomez as respondent. At our request, the parties submitted supplemental briefs on the question whether the district court lacked jurisdiction because Ortiz-Sandoval named Gomez rather than the warden of the prison where Ortiz-Sandoval is incarcerated. We review this question of personal jurisdiction de novo. Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995).

"[A] person in custody pursuant to the judgment of a State court," Ortiz-Sandoval filed his petition under 28 U.S.C. § 2254. Consistent with 28 U.S.C. § 2242, the rules governing relief under section 2254 require Ortiz-Sandoval to name the "state officer having custody" of him as the respondent. Rule 2(a), 28 foll. U.S.C. § 2254. Typically, this person is "the warden of the facility in which the petitioner is incarcerated." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994) (per curiam) (citing Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992) (per curiam)). Failure to name the correct respondent destroys personal jurisdiction. Id.

While the warden is the typical respondent, the rules following section 2254 do not specify the warden. According to the advisory committee's note, the "state officer having custody" may be "either the warden of the institution in which the petitioner is incarcerated ... or the chief officer in charge of state penal institutions." Rule 2(a), 28 foll. U.S.C. § 2254 advisory committee's note.

The note describes examples of proper respondents in given situations. Where a petitioner is in custody due to the state action he is challenging, "[t]he named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison)." Rule 2, 28 foll. U.S.C. § 2254 advisory committee's note. Where the petitioner is on probation or parole, he may name his probation or parole officer "and the official in charge of the parole or probation agency, or the state correctional agency, as appropriate." Id. (emphasis added). In other cases, the petitioner may name the state attorney general. Id. The note thus contemplates a variety of possible respondents, including multiple respondents.

Directors of corrections have been held to satisfy the "person having custody" requirement. 1 King v. Lynaugh, 729 F.Supp. 57, 60 (W.D.Tex.1990) (Director of Texas Department of Corrections). Ortiz-Sandoval cites to numerous opinions in which we treat the California Director of Prisons as the respondent without directly addressing the question of his suitability. See, e.g., Aponte v. Gomez, 993 F.2d 705, 706 (9th Cir.1993). While these cases and similar cases from other courts do not provide reasoned discussion of the issue presented here, they demonstrate

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that naming the director rather than the warden is a very common practice.

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