The opinion of the court was delivered by: Pisano, District Judge
This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons stated below, the petition will be dismissed.
Petitioner was convicted in New Jersey state court on October 18, 2006 for possession of a controlled dangerous substance. He was sentenced to an eight-year prison term, with 4 years of parole ineligibility. Petitioner, through counsel Kevin Byrnes, appealed his conviction and sentence to the Superior Court of New Jersey, Appellate Division ("Appellate Division"), which affirmed. See State v. Hancock, 2008 WL 5101268 (N.J. App. Div. Dec. 5, 2008). The New Jersey Supreme Court denied certification of Petitioner's petition on March 23, 2009. See State v. Hancock, 198 N.J. 474 (2009).
In this petition, Petitioner asserts that his trial and appellate counsel, Kevin G. Byrnes, committed legal malpractice and violated his Sixth Amendment rights in representing him through the criminal process. Petitioner asserts that he is barred from further state court action due to Byrnes failure to properly perform his duties. He also claims that during trial, the prosecutor told the jury that Petitioner was guilty because he did not testify.
Petitioner did not file a post-conviction relief ("PCR") motion in state court. Nor did he raise his claims concerning ineffective assistance of counsel in his appeal in state court. Petitioner did raise the prosecutorial claim regarding the prosecutor commenting on his failure to testify before the state courts on direct appeal.
Petitioner brings his habeas petition as a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.
Petitioner has not named the proper respondent in his petition. Petitioner names only Kevin Byrnes, Esq., as the respondent. As noted, Mr. Byrnes was Petitioner's counsel at trial and on direct appeal.
According to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts, "If the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody." Therefore, the proper respondent would have been the warden or administrator of the facility in which Petitioner was detained at the time he filed his petition. However, in this case, since Petitioner is now released, if Petitioner is on parole due to the state judgment he is attacking, the named respondent should be the particular parole officer responsible for his supervision. If Petitioner is not on parole, the proper respondent ...