Unpublished Disposition, 902 F.2d 40 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1990)

Cecil L. NORTON, Petitioner-Appellant,v.STATE of OREGON, Respondent-Appellee.

No. 89-35366.

United States Court of Appeals, Ninth Circuit.

April 25, 1990.

Before WALLACE, FERGUSON and BRUNETTI, Circuit Judges.


ORDER

Norton appeals from a dismissal by the district court of his petition for habeas corpus brought pursuant to 28 U.S.C. § 2254. He challenges his conviction in Oregon state court for aggravated murder, murder, kidnapping, and rape. He has not begun to serve his sentence on that conviction because he is incarcerated in California.

In his petition, Norton is required to name "the person who has custody over him." 28 U.S.C. § 2242; King v. California, 356 F.2d 950 (9th Cir. 1966). In this case, where Norton is incarcerated in California but wishes to challenge his possible future custody in Oregon, he must sue "the officer having present custody of [him] and the attorney general" of Oregon. Rule 2(b), Rules Governing Section 2254 Cases in United States District Courts. This he has failed to do and we have no jurisdiction.

We need not decide whether Norton has failed to demonstrate jurisdiction on a second basis: there is no evidence of a detainer or other formal step taken by the State of Oregon to require transfer to the Oregon authorities after completion of the California incarceration. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Tinghitella v. California, 718 F.2d 308, 310 (9th Cir. 1983).

APPEAL DISMISSED.