The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTION FOR WRIT OF HABEAS CORPUS
Michael Lee Williams has filed a Petition is this action seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Docket 70. The Petition seeks an order releasing him from the custody of the United States Parole Commission. The Petition is opposed by the government. Docket 74. Williams Filed a reply. Docket 76. For reasons stated below the magistrate judge recommends that the Petitioner Michael Lee Williams' request for immediate release be denied.
The habeas petition is styled Michael Lee Williams, Petitioner, v. United States Parole Commission, Respondent. Docket 70. The government's response is styled United States of America, Plaintiff, v. Michael Lee Williams, Defendant. Docket 74. Where a prisoner files an action under 28 U.S.C. § 2241, the prisoner must name the warden of the penitentiary where he is confined as a respondent. Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir. 1998). The failure to name the petitioner's custodian as the respondent deprives the federal court of personal jurisdiction. Stanley v. California, S.Ct. , 21 F3d 359, 360 (9th Cir. 1994).
The record does not reflect service of process on the proper respondent of the habeas petition. Nor is it clear from the government's response that the government intended its response to be on behalf of the proper party respondent.*fn1
At the time Williams filed his petition for habeas relief he was incarcerated in the Anchorage jail for alleged violations of his federal parole stemming from his conviction in United States v. Williams, case 3:86-cr-00055-JWS. Williams was last re-paroled on December 3, 2009 and was to remain on supervision until the expiration of his sentence on December 14, 2010. See Exhibit N to Docket 74.
On January 8, 2010 the Parole Commission issued a warrant for Williams based upon information from the United States Parole Office (USPO) that he had absconded from supervision. See Exhibit O to Docket 74. On May 11, 2010 Williams was arrested in Las Vegas, Nevada for state charges of domestic violence. Those charges were dismissed on May 26, 2010. Before he was released from custody on May 27, 2010, the United States Marshals Service executed a parole warrant. This execution was contrary to the Commissioner's instructions which provided in a Memorandum to the U.S. Marshal in Anchorage, Alaska as follows:
"If the parolee is already in the custody of federal or state authorities, do not execute this warrant. Place a detainer and notify the Commission. Also, if a criminal arrest warrant has been issued for this parolee, execution of such criminal warrant shall take precedent. If the prisoner is sentenced to a new Federal or State term of imprisonment, place the warrant as a detainer and indicate the institution designated for service of sentence."
Docket 74-2. This memorandum is dated January 8, 2010 from a case analyst with the U.S. Parole Commission.
On June 11, 2010 the Commission ordered the Marshals to release Williams from the custody of its warrant. A Notice of Action dated June 11, 2010 indicates that Williams was to be released from custody and conditionally reinstated to supervision from custody of the warrant dated January 8, 2010. The document reflects that the warrant is to be lodged as a detainer while the State of Alaska's robbery charge is adjudicated. The Notice of Action further reflects that the Commission's (January 8, 2010) warrant was improperly executed because the State of Alaska had an outstanding warrant for robbery existing at the time of its execution. Exhibit S to Docket 74-2.
Williams was returned to Alaska where he was subsequently released on bail by the Alaska State Court. On September 17, 2010 the Commission's January 8, 2010 warrant was executed by the U.S. Marshal. Exhibit T to Docket 74-2. On September 22, 2010 supervising U.S. Probation Officer Scott J. Waters conducted a preliminary interview to assist the Commission in determining whether there was probable cause to believe that Williams had violated the conditions of parole. See Exhibit U to Docket 74-2. Williams denied the parole violation charges but waived his right to have a local revocation hearing. Id., p.9, Docket 74, p.10, n.5. The Commission found probable cause to believe that Williams had violated the conditions of release and requested the Bureau of Prisons designate him to an institution for his parole revocation hearing. Williams was transferred to Sea-Tac en route ...