John E. Neal, Petitioner-appellant, v. Attorney General of the State of Arizona, William Gastelum,warden, Respondents-appellees, 944 F.2d 909 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 944 F.2d 909 (9th Cir. 1991)

Submitted Sept. 11, 1991. *Decided Sept. 16, 1991


Before CANBY and KOZINSKI, Circuit Judges, and HUFF**  District Judge.

MEMORANDUM*** 

Neal's habeas corpus petition failed to name as respondent the party having custody of him. His failure to name that party is a fatal defect. King v. California, 356 F.2d 950 (9th Cir. 1966). The defect may be cured by amending the petition. Ashley v. Washington, 394 F.2d 125, 125 n. 1 (9th Cir. 1968). The district court twice instructed Neal that he had to amend his petition to name his parole or probation officer, the person having custody over him, as a respondent. Neal failed to follow the court's directives. The district court accordingly did not err in dismissing Neal's petition and in denying his request for rehearing.

AFFIRMED.

 *

The panel unanimously finds the case appropriate for submission without argument pursuant to Fed.R.App. 34(a) and Ninth Circuit Rule 34-4

 **

The Honorable Marilyn Huff, United States District Judge for the Southern District of California, sitting by designation

 ***

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