Opinion
CIVIL ACTION NO. 03-4065
May 24, 2004
REPORT AND RECOMMENDATION
Presently before the Court is an Amended Petition for Writ of Habeas Corpus filed by Stephen Michael Konya pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Bellefonte, Pennsylvania. For the reasons which follow, the habeas petition should be denied and dismissed.
I. PROCEDURAL HISTORY
Unless otherwise noted, the following facts were compiled from the amended habeas petition, the Response thereto of the Attorney General of Pennsylvania, the exhibits submitted by the parties, and the state court record forwarded to this Court by the Clerk of the Court of Common Pleas of Lehigh County.
Following a jury trial in the Court of Common Pleas of Lehigh County, petitioner was convicted of four counts of possession with intent to deliver a controlled substance and one count of criminal conspiracy.See Commonwealth v. Konya, No. 258 EDA 2002, Mem. Op. at 2 ( Pa. Super. filed June 5, 2003). The trial court sentenced petitioner, but following post-sentencing motions and a hearing, the trial court vacated petitioner's sentence on two occasions and ultimately sentenced petitioner to an aggregate term of not less than twenty (20) years or more than forty (40) years in prison. Id.
On Dec. 18, 1998, petitioner was sentenced to an aggregate term of 24 years in prison, followed by 10 years probation. See Commonwealth v. Konya, No. 1701 Term 1998, Mem. Op. at 1-2 (C.P. Lehigh County dated Dec. 18, 2001). On April 22, 1999, the trial court granted reconsideration of petitioner's sentence, see id at 3 n. 4, and on May 19, 1999, petitioner was re-sentenced to an aggregate term of not less than 24 or more than 48 years in prison, id at 2. On June 9, 1999, upon agreement of counsel, the trial court vacated the May 19, 1999 sentence on the basis that the sentence exceeded the statutory maximum, and the court imposed the sentence which petitioner is currently serving. Id.
On June 11, 1999, petitioner's counsel filed a direct appeal to the Superior Court from the judgment of sentence. See Common Pleas Ct. Op. dated 12/18/01, at 5. However, petitioner thereafter filed a praecipe to enter his appearance pro se on October 20, 1999, indicating that his attorney's "services have been terminated." Id. On December 2, 1999, petitioner's counsel filed a request to withdraw as petitioner's counsel, and on February 8, 2000, the Superior Court granted counsel's request. Id. at 5-6. On February 9, 2000, the Superior Court docketed petitioner's pro se praecipe to discontinue his appeal (Respondent's Ex. "Fl"), and sent a Notice of Discontinuance of Action (Respondent's Ex. "F2") to the parties. Id. at 6
At a subsequent hearing on post-conviction appeal, petitioner's testimony further confirmed that he had fired his attorney and that it was petitioner's decision to discontinue his appeal. See Common Pleas Ct. Op. dated 12/18/01, at 5 n. 8.
On June 8, 2000, petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46. Id at 3. Following the appointment of counsel, counsel filed an amended PCRA petition on October 11, 2000, and counsel thereafter withdrew as petitioner's counsel. Id. On January 2, 2001, new counsel entered his appearance on behalf of petitioner and, following leave of court, filed a second amended petition on January 29, 2001.Id. The Commonwealth thereafter filed its Answer to the second amended petition, and on June 6, 2001, petitioner's counsel filed a third amended petition. Id. On June 12, 2001, the Commonwealth responded to petitioner's third amended petition, and on that same date, an evidentiary hearing on the PCRA petition was held, and a briefing schedule was ordered. Id.
Although petitioner's counsel "inexplicably" filed a fourth amended petition on Sept. 21, 2001, see Common Pleas Ct. Op. dated 12/18/01, at 4 n. 7, the PCRA Court did not consider this fourth petition "because the time for such a filing ha[d] long past," see id at 4 n. 7.
After the filing of briefs, the PCRA Court found that "all of [petitioner's] claims in his PCRA Petition are waived because of his discontinuation of his [direct] appeal." See Common Pleas Ct. Op. dated 12/18/01, at 7; see also id. at 5-7. Furthermore, the PCRA Court found that, in the alternative, "[e]ven if [petitioner's] claims were not waived, [his] Petition must still be denied because his claims are without merit." Id. Therefore, the PCRA Court denied and dismissed petitioner's amended petition on December 18, 2001.Id. at 37.
The PCRA Court explained that, under Pennsylvania law, "[t]he voluntary discontinuation of a direct appeal waives the issues which could have been raised in the appeal and these issues cannot be addressed in a petition under the PCRA." See Common Pleas Ct. Op. dated 12/18/01, at 5 (citing Commonwealth v. McKinney, 772 A.2d 1023 (Pa.Super. 2001); 42 Pa. C.S. § 9544(b)). The Court pointed out: "This waiver includes all [petitioner's] claims of alleged ineffective assistance of counsel. Since [petitioner] was proceeding pro se at the time he discontinued his appeal — and was thus no longer represented by [his attorney] — a prior stage in these proceedings existed at which time [petitioner] could have alleged the ineffectiveness of [his attorney] (i.e., on direct appeal)." See Common Pleas Ct. Op. dated 12/18/01, at 6.
On January 14, 2002, petitioner filed an appeal to the Pennsylvania Superior Court, and on January 24, 2002, the PCRA Court directed petitioner to file a statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (hereinafter referred to as "Rule 1925(b)"). See Pa. Super. Ct. Op. filed 6/5/03, at 3, 4, 5 n. 5. On February 8, 2002, petitioner's counsel filed an untimely Rule 1925(b) statement on petitioner's behalf, see id. at 5, and the PCRA Court "declined to file an opinion in response to [petitioner's] untimely [Rule] 1925(b) statement," see id. at 6.
Under Pa. R. App. P. 1925(b), "[t]he lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order." See Pa. R. App. P. 1925(b).
The Superior Court of Pennsylvania found: "In his appellate brief, [petitioner] specifically acknowledges that the trial court ordered him to file a concise statement pursuant to Pa. R. App. P. 1925(b), [petitioner's counsel] had proper notice of the order, and [counsel] filed the requested statement on [petitioner's] behalf on Feb. 8, 2002." See Pa. Super. Ct. Op. filed 6/5/03, at 5 n. 5 (citing Appellant's Br. at 13-14).
Petitioner also filed a pro se brief on appeal, although he was represented by counsel. Id. at 4 n. 3. Accordingly, on July 30, 2002, the Superior Court directed the PCRA Court to hold a hearing to determine whether petitioner was voluntarily waiving his right to be represented by counsel on appeal. Id. Following a hearing, petitioner signed a written waiver of counsel, and the PCRA Court found that petitioner made a voluntary and knowing waiver of his right to counsel. Id. Therefore, the Superior Court found that petitioner was proceeding pro se on appeal. Id.
On June 5, 2003, the Superior Court found that "by failing to file a concise statement of matters complained of on appeal in a timely manner pursuant to Rule 1925(b), and the trial court's refusal to overlook the untimeliness, we find that, with exception to his final claim, [petitioner] has waived his issues on appeal on this ground."Id. at 6, 4-5 (citing Commonwealth v. Lord. 719 A.2d 306, 309 (Pa. 1998); Commonwealth v. Butler. 812 A.2d 631, 633 (Pa. 2002); In re C.R.J., 801 A.2d 1261 (Pa.Super. 2002)). Therefore, the Superior Court affirmed the PCRA Court's denial of PCRA relief, see Pa. Super. Ct. Op. filed 6/5/03, at 7, and petitioner did not file a petition for allowance of appeal to the Supreme Court,see Hab. Pet. ¶ 11(a)(7); Resp. to Hab. Pet. at 9.
Petitioner's "final claim" on appeal in the Superior Court alleged ineffective assistance of PCRA counsel in failing to include three issues in the Pa. R. App. P. 1925(b) statement. See Pa. Super. Ct. Op. filed 6/5/03, at 6-7. The Superior Court found this claim waived for failure to file a brief in compliance with Pa. R. App. P. 2135. Id. at 7.
In Lord, the Supreme Court of Pennsylvania held that "from this date forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925." See Lord. 719 A.2d at 309 (emphasis added). InButler, the Pennsylvania Supreme Court reconfirmed that "[i]nLord . . . this Court eliminated any aspect of discretion and established a bright-line rule for waiver under Rule 1925. . . . Thus, waiver under Rule 1925 is automatic." Butler, 812 A.2d at 633 (applying the "automatic waiver" rule of Lord where PCRA petitioner failed to comply with PCRA Court's Rule 1925 order). In In re C.R.J., the Court found that, where the appellant failed to file a timely Rule 1925(b) statement, and the trial court refused to overlook the untimeliness, appellant waived his claims on appeal. See In re C.R.J., 801 A.2d at 1263-64.
Petitioner thereafter filed a petition for writ of habeas corpus in this Court signed June 30, 2003 and an amended habeas petition signed October 20, 2003. The Response to the amended habeas petition alleges that petitioner's claims are procedurally barred, see Resp. to Hab. Pet. at 15 ("Kenya's claims should therefore be dismissed because they are all procedurally barred"), and in any event, that the claims do not warrant federal habeas relief, see id. at 19-44.
Respondent does not deny the propriety of the filing of petitioner's amended petition and acknowledges the timeliness of the petition, see Resp. to Hab. Pet. at 10-11.
II. DISCUSSION
The failure to "fairly present" federal claims in state court, where no state remedy remains available, "bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted." Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (citing Coleman v. Thompson. 501 U.S. 722, 731 (1991)),cert. denied, Cristin v. Wolfe, 537 U.S. 897 (2002); see also Coleman, 501 U.S. at 729 ("This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'"Cristin, 281 F.3d at 410 (quoting Rose v. Lundy, 455 U.S. 509, 518-19 (1982)).
In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court[,] . . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice.See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quotingColeman, 501 U.S. at 753); see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier. 477 U.S. 478, 488 (1986)), cert denied, 532 U.S. 980 (2001). The "cause" alleged must be "something that cannot fairly be attributed to" the petitioner. Coleman, 501 U.S. at 753.
In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts. 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (quoting Murray. 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin. 281 F.3d at 412 (quoting Keller v. Larkins. 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)): see Schlup v. Delo. 513 U.S. 298, 316 (1995).
In the present case, petitioner decided to discontinue his direct appeal to the Superior Court, and he did not seek review in the Supreme Court of Pennsylvania. See Common Pleas Ct. Op. dated 12/18/01, at 5-6, 5 n. 8. Thus, petitioner failed to fairly present his claims to the Pennsylvania courts on direct review.
On appeal from the dismissal of the PCRA petition, the Superior Court found that petitioner's Rule 1925(b) statement was untimely filed, in violation of Pennsylvania's Rule 1925(b). See Pa. Super. Ct. Op. filed 6/5/03, at 5-6. In addition, the Superior Court found that the PCRA Court "refus[ed] to overlook the untimeliness" of petitioner's Rule 1925(b) statement and that the PCRA Court "declined to file an opinion in response to [petitioner's] untimely [Rule] 1925(b) statement."Id. The Superior Court further noted that, under Pennsylvania law, "when the [lower] court declines to do so, the [petitioner's] issues are waived on appeal." Id. at 6 (citing In re C.R.J., 801 A.2d at 1263-64 (holding that juvenile delinquent's claims were waived where the juvenile failed to file a timely concise statement and the trial court refused to overlook the untimeliness)). Therefore, the Court found: "Accordingly, by failing to file a concise statement of matters complained of on appeal in a timely manner pursuant to Rule 1925(b), and the trial court's refusal to overlook the untimeliness, we find that, with exception to his final claim, [petitioner] has waived his issues on appeal on this ground." Pa. Super. Ct. Op. filed 6/5/03, at 6 (footnote added): see In re C.R.J., 801 A.2d at 1263-64 ("Accordingly, by failing to file a concise statement of matters complained of on appeal in a timely manner pursuant to Rule 1925(b) and the trial court's refusal to overlook the untimeliness, we find that appellant has waived his claims on appeal."); Commonwealth v. Overby, 744 A.2d 797, 798 (Pa.Super. 2000) (applying waiver for failure to comply with Rule 1925(b) where appellant failed to timely file Rule 1925(b) statement); see also Butler, 812 A.2d at 633 (applying the "automatic waiver" rule where petitioner failed to comply with PCRA Court's Rule 1925(b) Order); Lord. 719 A.2d at 309 ("in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925"). Thus, due to petitioner's failure to comply with Pennsylvania's Rule 1925(b), petitioner's claims are procedurally defaulted under Pennsylvania law. See Coleman, 501 U.S. at 731; Cristin. 281 F.3d at 410. Moreover, petitioner no longer has a remedy by which the state courts could consider his claims because he is now barred from filing a second PCRA Petition. See 42 Pa. C.S.A. § 9545(b)(1).
As explained above, see supra note 8, the Superior Court found that petitioner's claim of ineffective assistance of PCRA counsel was waived due to petitioner's violation of Pa. R. App. P. 2135 which relates to requirements regarding the filing of briefs.See Pa. Super. Ct. Op. filed 6/5/03, at 6-7. In any event, to the extent the present petition may be construed as alleging ineffective assistance of PCRA counsel, that claim is not cognizable in a federal habeas petition. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."); see also Cristin, 281 F.3d at 420 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)) (habeas petitioner "had no Sixth Amendment right to representation at his PCRA hearing"); Hendel v. Vaughn, 1998 WL 470159, at *5 (E.D. Pa. Aug. 10, 1998) ("Petitioner cannot claim ineffective assistance at the PCRA level because there is no constitutional right to counsel at that stage.").
It is noted that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see, e.g., Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir. 2003) (where Court held that it was "bound by the state court's finding" regarding timeliness of PCRA Petition under Pennsylvania law), cert. denied. 124 S.Ct. 317 (2003).
Where "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas." Coleman. 501 U.S. at 735 n.*.
"The PCRA, as amended January 16, 1996, provides that collateral actions must be filed within one year from the date that the conviction becomes final." Hendel. 1998 WL 470159, at *5 n. 8 (citing 42 Pa. C.S.A. § 9545(b)(1)).
In addition to petitioner's procedural default in the Superior Court, petitioner also defaulted in the PCRA Court. See Common Pleas Ct. Op. dated 12/18/01, at 5-7. Specifically, the PCRA Court found that all of petitioner's claims were waived since his claims could have been litigated on direct appeal, but were not because petitioner voluntarily discontinued his appeal. Id. at 6-7 (citing Commonwealth v. McKinney, 772 A.2d 1023 (Pa.Super. 2001) (PCRA claims were waived where petitioner could have raised them on direct appeal but petitioner had voluntarily discontinued his direct appeal); 42 Pa. C.S. § 9544(b)); see Common Pleas Ct. Op. dated 12/18/01, at 7 ("all of [petitioner's] claims in his PCRA Petition are waived because of his discontinuation of his appeal").
It is noted that the PCRA Court's holding in the alternative — that even if petitioner did not waive his claims (which he did), his claims still would not warrant relief — does not undermine the conclusion that the PCRA Court rejected petitioner's claims on the basis of a state court procedural default. See Harris v. Reed. 109 So. Ct. 1038, 1044 n. 10 (1989).
Thus, petitioner's claims were procedurally defaulted in the PCRA Court and in the Superior Court. Since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his underlying defaults, the Court may not consider the merits of petitioner's defaulted claims. See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750); see also Werts, 228 F.3d at 194. Accordingly, the petition should be denied and dismissed.
Respondent alleges that petitioner's claims are also procedurally defaulted in the Supreme Court of Pennsylvania since he failed to seek review by that Court after the Superior Court affirmed the denial of PCRA relief, see Resp. to Hab. Pet. at 12-13;see also Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004) (citing 28 U.S.C. § 2254(b)(1)) ("Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies") (emphasis added). However, it is unnecessary to address that argument since it has already been found that petitioner's claims are defaulted.
To the extent that the present petition may be construed as alleging ineffective assistance of PCRA counsel as cause for default of his claims, petitioner cannot rely on that claim because "counsel's ineffectiveness will constitute cause only if it is an independentconstitutional violation," Coleman, 501 U.S. at 755 (emphasis added): see Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert. denied, 504 U.S. 944 (1992) (conduct of counsel on collateral appeal cannot amount to cause that would excuse a failure to properly litigate a claim in state courts), and there is no constitutional right to counsel at the PCRA level, see Cristin, 281 F.3d at 420 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)) (habeas petitioner "had no Sixth Amendment right to representation at his PCRA hearing"); Tillett v. Freeman. 868 F.2d 106, 108 (3d Cir. 1989); Hendel, 1998 WL 470159, at *5 ("Petitioner cannot claim ineffective assistance at the PCRA level because there is no constitutional right to counsel at that stage.").
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. Under the AEDPA, "a COA may not issue unless `the applicant has made a substantial showing of the denial of a constitutional right.'"Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28 U.S.C. § 2253(c)); see Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
When a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right;and (2) whether the district court was correct in its procedural ruling. Slack. 529 U.S. at 484; see Miller-El. 123 S.Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); Walker v. Frank. 2003 WL 115951, at *2 (3d Cir. Jan. 14, 2003), cert. denied. 124 S.Ct. 91 (2003); Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002).
"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."Slack. 529 U.S. at 484; see Woods. 215 F. Supp.2d at 464. Here, for the reasons set forth above and in light of the aforementioned Supreme Court and Third Circuit decisions invoking the procedural default doctrine as a procedural bar, a reasonable jurist could not conclude that the Court would be incorrect in dismissing the present petition since petitioner has defaulted his habeas claims in state court. See Slack, 529 U.S. at 484;see, e.g., Swisher v. True, 325 F.3d 225, 231 (4th Cir.) (finding that COA should not issue where habeas claim was barred by the procedural default doctrine), cert. denied, 123 S.Ct. 2368 (2003); Ogan v. Cockrell. 297 F.3d 349, 357-58 (5th Cir.) (same), cert. denied. 123 S.Ct. 582 (2002). Accordingly, the habeas petition should be denied and dismissed, and a COA should not issue.
Respondents have filed a Motion to Remove the Attorney General of Pennsylvania and the District Attorney of Lehigh County as Parties Respondent (Doc. No. 22), stating that a habeas petition such as the petition filed in this case should name petitioner's custodian as the respondent. Initially, it is noted that the habeas petitiondoes name as a respondent petitioner's custodian, the Superintendent of the state correctional institution where petitioner is incarcerated. The Attorney General of Pennsylvania and the District Attorney were also automatically named as respondents in the petition since, pursuant to Local Rule of Civil Procedure 9.3(a), "all petitions for writs of habeas corpus . . . shall be filed on the forms provided by the Court and shall contain the information called for by such forms." See Local R. Civ. P. 9.3(a) (emphasis added). Thus, pursuant to Local Rule 9.3(a), petitioner was required to file his petition on the forms provided by the Court (which forms name the Superintendent, the District Attorney, and the Attorney General as respondents). In addition, following the filing of the habeas petition, the Office of the Attorney General sent a letter to the District Attorney of Lehigh County indicating that the Senior Deputy Attorney General believed that it was most appropriate for the District Attorney to prepare a response to the petition. However, after the District Attorney was ordered to respond to the habeas petition but before a response was filed, per telephone conversation with my chambers, the Senior Deputy Attorney General of Pennsylvania indicated that since the Office of the Attorney General prosecuted this particular case, instead of the District Attorney, the Order directing the District Attorney to respond to the petition should be vacated, and an Order that the Attorney General be named as the respondent to file a response to the habeas petition would be appropriate. Consequently, the Attorney General was then ordered to respond to the habeas petition. Now, after the filing of the Attorney General's response to the amended habeas petition, the Attorney General and the District Attorney request that they be removed as parties respondent. It is noted that, although it is clear from Rule 2(a) of the habeas rules that the Superintendent of the correctional institution is an appropriate and necessary respondent to the present petition, see Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997) (quotingStanley v. California Supreme Court. 21 F.3d 359, 360 (9th Cir. 1994)) ("Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction"), it is not clear that, under the caselaw in the Third Circuit, Rule 2(a) prohibits the inclusion of the District Attorney and the Attorney General as respondents (in addition to the Superintendent), especially where the Attorney General specifically indicated an interest in filing an opposing response to the habeas petition. See Rule 2(a), 28 U.S.C. foll. § 2254. In any event, in light of respondents request to now be removed as parties respondent, and since it appears that the Superintendent, petitioner's present custodian, is the only necessary respondent under Rule 2(a), respondent's motion should be granted.See id. (where petitioner is in custody pursuant to the state judgment in question, "the state officer having custody of the [petitioner] shall be named as respondent"); see also Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (where Seventh Circuit dismissed state attorney general as a party).
In light of the recommended dismissal of the habeas petition on the grounds that petitioner has procedurally defaulted his claims, petitioner's motion for discovery styled "Motion Pursuant to Habeas Corpus Rule 6" (Doc. No. 7) should be denied.
My Recommendation follows.