                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 31 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DICK SKY,                                        No. 10-35473

              Petitioner - Appellant,            D.C. No. 3:08-cv-00152-JWS

  v.
                                                 MEMORANDUM *
BRUNO STOLC,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                            Submitted August 29, 2012 **
                                Anchorage, Alaska

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Dick Sky appeals the district court’s dismissal with prejudice of his 28

U.S.C. § 2254 habeas petition for failure to name the proper respondent. Sky

named as respondent Bruno Stolc, the warden of the private correctional facility


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
where he was being held. Stolc filed a motion to dismiss for lack of personal

jurisdiction, arguing that he was not the proper respondent because he was not a

“state officer who has custody” as required by the Rules Governing [28 U.S.C.]

§ 2254 Cases. The district court dismissed Sky’s petition with prejudice after Sky

failed to amend to name the proper respondent, Alaska Commissioner of

Corrections Joseph Schmidt. Whether a habeas petitioner has named the proper

respondent is reviewed de novo. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th

Cir. 1996). Failure to name the proper respondent strips the district court of

personal jurisdiction. Id.

      Rule 2(a) of the Rules Governing § 2254 Cases states that “[i]f the petitioner

is currently in custody under a state-court judgment, the petition must name as

respondent the state officer who has custody.” Sky concedes that Stolc is not a

state officer, but argues that Stolc remains the proper respondent because Stolc had

custody of Sky. However, Alaska Statute § 33.30.051 states that “[a] person

convicted of an offense against the state shall be committed to the custody of the

commissioner.” See Ortiz-Sandoval, 81 F.3d at 895 (holding that the proper

respondent in a habeas petition depends in part on who has official custody of

prisoners in the penal system of the state in question). Although Stolc had physical

custody of Sky at the time Sky filed his habeas petition, Stolc is not a state officer

and, thus, is not the proper respondent.
     The dismissal with prejudice of Sky’s habeas petition for failure to name the

proper respondent is AFFIRMED.

     All pending motions are DENIED.
