ORDER
Petitioner Kenneth James Myers, who is confined in a Gila County Jail, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court granted the Application and ordered Petitioner to show cause why the Petition and this case should not be dismissed as moot. Petitioner has filed a response to the show cause order (Doc. 5). The Court will discharge the show cause order and dismiss the Petition with leave to file an amended petition naming a proper respondent and describing when and how he has exhausted his challenges to his detention on a fugitive warrant in state court.
Petitioner names the "Gila County Sheriffs [sic]" as the Respondents and the Arizona Attorney General as an additional Respondent. Petitioner indicated the following in his Petition: he was detained on a fugitive warrant issued from Collin County, Texas; he was arrested and appeared in the Gila County Justice Court-Payson Regional Justice Court concerning "DR# 2020-10418/warrant# 2020253 Collin County"; and he appeared at an August 18, 2020 hearing before Judge Little in the Payson Regional Justice Court. (Id.) Petitioner alleged that he had not been convicted and was testing the legality of his detention. He claimed that he was being held on a civil extradition matter absent a governor's warrant and absent a waiver. Petitioner attached the following documents to his Petition:
• A "Gila County Justice Court, Payson Regional Justice Court Initial Appearance for Fugitive" document, which reflects that a criminal fugitive warrant for forgery was issued by Texas. (Doc. 1 at 12.) The document specifically states that Petitioner has the right to test the legality of his incarceration in Arizona by filing a petition for a writ of habeas corpus in the Gila County Superior Court or to waive challenges to extradition.
• An August 18, 2020 "Misdemeanor/Felony Release Conditions and Release Order," which reflects that "Bond for Other Court," specifically Collin County, Texas, required an appearance bond of $20,000 with Petitioner to appear in court within ten days of release. (Id.) Petitioner was ordered to appear on August 28, 2020 and, if he was released, to comply with conditions of release.
• An August 18, 2020 Gila County search warrant authorizing a search of Plaintiff, a vehicle, two cellular telephones, a tablet, and a laptop for evidence of fraud, drugs, and drug paraphernalia. (Id. at 15-16.)
• An August 18, 2020 "Criminal Complaint Fugitive from Justice" issued by the Gila County Justice Court, Payson Precinct. (Id. at 17-18). The Criminal Complaint reflects that Petitioner was charged on July 14, 2020 in municipal court in Collin County, Texas, with forgery in violation of "TX 32.21" and that Petitioner was taken into custody on August 17, 2020. (Id.)
• An August 18, 2020 Order in which the Justice of the Peace ordered Petitioner held in the Gila County Jail for a period not to exceed 30 days unless he posted bail or was legally discharged. (Id.)
• A September 11, 2020 letter from the Payson Justice Court stating that Petitioner had no further pending cases at the Justice and Magistrate Courts and referring to cases 2020IA472 and 2020IA473.1 (Id. at 19.)
• A September 10, 2020 letter from Gila County Superior Court stating the court showed no record for cases 2020IA472 and 2020IA473. (Id. at 20.)
The Petition was signed by Plaintiff on September 21, 2020.
II. Response to Order to Show Cause On September 22, 2020, Petitioner was indicted in Gila County Superior Court, case# CR 2020-00380, for fraudulent schemes and artifices.2 A warrant for Petitioner's arrest was issued September 30, 2020, and Petitioner's initial appearance was held the same day.3 According to the docket in CR 2020-00380, the charge remains pending against Plaintiff, who remains in custody.4
On January 11, 2021,5 proceedings in the Gila County Superior Court case concerning Petitioner's fugitive warrant, FW 2020000017, were continued.6
As reflected by Petitioner's Response to the Show Cause Order, the Fugitive Warrant case, FW 2020-00017, remains pending against Petitioner.7 Therefore, the Court will discharge the Show Cause Order.
III. Lack of Personal Jurisdiction A petitioner for habeas corpus relief under 28 U.S.C. § 2241 must name the state officer having custody of him as the respondent to the petition. See Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997). In a case concerning pretrial detention, this person is the sheriff of the institution where the petitioner is incarcerated. When a habeas petitioner has failed to name a respondent whohas the power to order the petitioner's release, the Court "may not grant effective relief, and thus should not hear the case unless the petition is amended to name a respondent who can grant the desired relief." Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004).
Petitioner has named "Gila County Sheriffs" as Respondents, but he has not named the Gila County Sheriff as a Respondent. Therefore, the Petition will be dismissed, and Petitioner will be given an opportunity to amend his Petition to name a proper Respondent.
IV. Additional Information to Include in an Amended Complaint
As stated in its previous Order, the Court considers Petitioner's Petition under 28 U.S.C. § 2241. See Whelan v. Noelle, 966 F. Supp. 992, (D. Ore. Feb. 13, 1997). Section 2241 does not specifically require a petitioner to exhaust state remedies before filing a federal petition for habeas corpus. See Snyder v. Flathead Co. Detention Center, No. CV19-00019, 2019 WL 1547292, at *1 (D. Mont. Jan. 28, 2019) (Report & Recommendation), adopted 2019 WL 1542871 (D. Mont. Apr. 9, 2019). The Ninth Circuit, however, "require[s], as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241" in immigration proceedings. Id. (citing Castro-INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Bargas v. Gonzales, 548 U.S. 30 (2006)). Further, "[i]n the ordinary case, exhaustion of state remedies is a prerequisite to seeking habeas corpus in the federal court to avoid extradition." Whelan, 966 F. Supp. at 997 (citing cases); Snyder, at *1; see also Daniels v. United States Probation, No. 9:20cv0655, 2020 WL 3893006, at *2 (N.D.N.Y. July 10, 2020); Finch v. Davidson Co. Sheriffs Dep't, No. 3:20cv91, 2020 WL 690658, at *2 (N.D. Tex. Jan. 21, 2020). As described in Whelan,
The Supreme Court, after tracing the development of the exhaustion doctrine, stated it in the leading case of Ex parte Hawk, 321 U.S. 114, 116-17, 64 S. Ct. 448, 450, 88 L. Ed. 572 (1944) as follows:
"Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or by writ of certiorari, have been exhausted."
In United States ex rel. Drury v. Lewis, 200 U.S. 1, 7, 26 S. Ct. 229, 231, 50 L. Ed. 343 (1906), the Supreme Court had further expounded the reason for the prevailing doctrine as follows:
"It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom."
966 F. Supp. at 997. But the exhaustion doctrine is not jurisdictional; rather, it is a rule of comity. Therefore, upon a showing of special circumstances, a district court can act in the absence of exhaustion. Id.
Under Arizona law, the only remedy for a prisoner challenging extradition proceedings is to petition for a writ of habeas corpus in state court. State v. Jacobson, 526 P.2d 784, 789 (Ariz. Ct. App. 1974). Arizona Revised Statutes § 13-3850 (formerly § 13-1310) provides that once the governor's warrant of extradition has issued, the accused may bring a habeas corpus action to question the adequacy of the requisition. Application of Stewart, 573 P.2d 504 (Ariz. Ct. App. 1977). However,
the duties of the trial court when such an application [for habeas corpus relief] is made have been specifically limited by the Arizona Supreme Court and these limitations must be adhered to. The areas of proper inquiry are limited to findings: "(1) that the complaint issued out of the demanding state was made on an affidavit; (2) that it substantially charges an offense; (3) that it is made to appear the accused is a fugitive from justice."
Id. (quoting Application of Oppenheimer, 389 P.2d 696 (1964), and citing Powell v. State, 507 P.2d 989 (1973), and Application of Montgomery, 546 P.2d 1155 (1976)).
Petitioner does not allege whether the Arizona governor, or his designee, has issued a warrant of extradition and, if he has, whether Petitioner has filed a petition for writ of habeas corpus to the Gila County Superior Court. In an amended petition, Petitioner should state (1) whether the Arizona governor, or his designee, has issued an extradition warrant, and (2) whether Petitioner has filed a petition for writ of habeas corpus in the Gila County Superior Court, or any other state court, and if so, the status of such petition.
For the foregoing reasons, Petitioner's Petition will be dismissed with leave to amend. Within 30 days, Petitioner may submit a first amended petition to cure the deficiency outlined above. The Clerk of Court will mail Petitioner a court-approved form to use for filing an amended petition.
If P...
