Opinion
Case No. 1:11-cv-071
03-26-2013
Vonnie D. Darby, Petitioner, v. Don Redmann, Warden of the James River Correctional Center, Respondent.
ORDER ADOPTING REPORT
AND RECOMMENDATION
The Petitioner, Vonnie Darby, filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Docket No. 2. On April 25, 2012, the State of North Dakota filed a motion to dismiss. See Docket No. 17. On February 12, 2013, Magistrate Judge Charles S. Miller, Jr. issued an "Order to Show Cause and Report and Recommendation" which provides, in part, as follows:
Based on the foregoing, it is hereby ORDERED that the parties show cause within the time period set forth below for objecting to the Report and Recommendation as to why Warden Robyn Schmalenberger should not be substituted as the party Respondent in this action. Also, it is herebySee Docket No. 20, p. 58. Neither of the parties filed an objection to the Report and Recommendation.
RECOMMENDED that:
1. The court order that Robyn Schmalenberger, Warden of the North Dakota State Penitentiary, be substituted as the Respondent in place of the State of North Dakota;
2. Respondent's Motion to Dismiss (Doc. No. 17) be GRANTED;
3. Darby's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. No. 2) be DENIED;
4. The court certify that an appeal from the denial of the petition may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith; and
5. A certificate of appealability not be issued.
On February 25, 2013, the State of North Dakota filed a response to the order to show cause providing in relevant part as follows:
According to the North Dakota State Penitentiary ("NDSP"), the Petitioner, Vonnie D. Darby ("Darby"), was transferred from the NDSP to the James River Correctional Center on January 31, 2013. Don Redmann is the Warden of the James River Correctional Center. Don Redmann is the state officer having physical custody of Darby and should be named as the Respondent in accordance with Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts.See Docket No. 21.
The Court has carefully reviewed the Report and Recommendation, relevant case law, and the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 41) and ORDERS the following:
1) Don Redmann, Warden of the James River Correctional Center, shall be substituted as the Respondent in place of the State of North Dakota;
2) The Court GRANTS the Respondent's Motion to Dismiss (Docket No. 17);
3) The Court DENIES Darby's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Docket No. 2);
4) The Court certifies that an appeal from the denial of the petition may not be taken in forma pauperis as such an appeal would be frivolous and cannot be taken in good faith; and
5) No certificate of appealability is issued.
IT IS SO ORDERED.
______________________
Daniel L. Hovland, District Judge
United States District Court