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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROGER M. WHEELER,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

Case No. C05-5764FDB

ORDER TO SHOW CAUSE

This matter is before the court on petitioner’s petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. The court, having reviewed petitioner’s petition and the balance of the record, hereby finds

and ORDERS:

Petitioner has filed a petition for federal habeas corpus relief under 28 U.S.C. § 2241, challenging

the fact that he was held past a “12 day waiver (30) days” in another state, before being “picked” up by the

state of Washington. Section 2241, however, is not the proper habeas corpus statute under which to file

the petition. Specifically, petitions under section 2241 “are used to attack the execution of a sentence.”

McIntosh v. United States Parole Commission, 115 F.3d 809, 811 (10th Cir. 1997). That is, because he is

challenging the fact or duration of his confinement, the appropriate statute under which to file petitioner’s

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ORDER

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petition is 28 U.S.C. § 2254. Id. 

In addition, the exhaustion of state court remedies is a prerequisite to the granting of a petition for

writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly

by respondent. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus may not be implied or inferred. A

petition can satisfy the exhaustion requirement by providing the highest state court with a full and fair

opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S.

270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). Full and fair presentation of

claims to the state court requires “full factual development” of the claims in that forum. Kenney v.

Tamayo-Reyes, 504 U.S. 1, 8 (1992). 

Petitioner indicates in his petition that he has not filed an appeal or any other challenge to his

conviction in state court. As such, petitioner has not presented his claims for federal habeas corpus relief

to the Washington State Supreme Court, the state’s highest court. Further, nowhere in his petition does

petitioner indicate the federal nature of the grounds for relief he raises. As such, petitioner has failed to

properly exhaust his administrative remedies. 

Petitioner also has failed to name a proper respondent. Rule 2(a) of the Rules Governing Section

2254 Cases in the United States District Courts reads in relevant part:

If the applicant is presently in custody pursuant to the state judgment in question, the

application shall be in the form of a petition for a writ of habeas corpus in which the

state officer having custody of the applicant shall be named as respondent

A petitioner for habeas corpus relief, therefore, must name the state officer having custody of him or her as

the respondent to the petition. This person typically is warden of the institution where the petitioner is

incarcerated. Failure to name the petitioner’s custodian deprives federal courts of personal jurisdiction.

Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994 (citations omitted). In this case,

petitioner has named the State of Washington as respondent. The State of Washington is not a proper

respondent in a habeas corpus petition. 

Accordingly, the court shall not serve the petition on respondent. Petitioner shall file by no later

than April 10, 2006, an amended petition under 28 U.S.C. § 2254 showing that his grounds for federal

habeas corpus relief have been properly exhausted in state court and naming a proper respondent, or show

cause why this matter should not be dismissed. 

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The Clerk shall send a copy of this Order to petitioner. 

DATED this 10th day of March, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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