Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Rosa Patricia QUINONEZ de Hutchings von Ludwitz, Petitioner-Appellant,v.W. PERRILL, Warden, Respondent-Appellee.

No. 87-2995.

United States Court of Appeals, Ninth Circuit.

Submitted June 21, 1989.* Decided June 23, 1989.

Alfredo C. Marquez, District Judge, Presiding.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Rosa Patricia Quinonez de Hutchings von Ludwitz appeals from the district court's order denying her petition for release of her husband pursuant to 28 U.S.C. § 2255.1  We affirm.

The petition in district court sought to reverse the conviction of petitioner's husband, William E. Hutchings von Ludwitz, for kidnapping. A person may petition for federal habeas corpus to secure the release of another person only where the application shows on its face why the prisoner did not personally sign and verify the petition. Warren v. Cardwell, 621 F.2d 319, 321 n. 1 (9th Cir. 1980). The availability of remedies under Sec. 2255 is exactly commensurate with that available under federal habeas corpus. Kaufman v. United States, 394 U.S. 217, 222 (1969).

Here, Rosa Patricia Quinonez de Hutchings von Ludwitz has made no allegation that her husband is incompetent to file a motion under Sec. 2255 on his own behalf. Therefore petitioner has no standing to bring this action. Cf. Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir. 1969) (some minimum showing of incompetence must appear before a hearing is necessary to determine if third party has standing to petition for habeas corpus). These claims would properly be brought by petitioner's husband, in the federal district court that sentenced him. See 28 U.S.C. § 2255; Farrow v. United States, 580 F.2d 1339, 1349 (9th Cir. 1978).

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 1

The petition states its source of jurisdiction to be 28 U.S.C. § 2241. However, the district court correctly construed the petition as a claim under 28 U.S.C. § 2255, because it requests the discharge of a federal prisoner