Opinion
Case No. 08-CV-850.
August 18, 2009
ORDER
On October 10, 2008, petitioner Ricardo L. Gabino ("Gabino") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After screening Gabino's petition under Rule 4 of the Rules Governing Section 2254 Cases, the court set a briefing schedule for respondent to answer Gabino's petition. Since then, respondents have filed a motion to dismiss the Attorney General of the State of Wisconsin as a party to this action.
Under Rule 2 of the Rules Governing Section 2254 Cases, if a habeas petitioner is in custody pursuant to a state court judgment, the petitioner must name as the respondent the state officer who has custody — typically a prison warden. Only where a petitioner is not yet in custody is it appropriate to name the state's attorney general as a respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (citing Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996)). Since Gabino is currently confined to the Kettle Moraine Correctional Institution, the attorney general is not a proper respondent.
Accordingly,
IT IS ORDERED that respondents' motion to dismiss (Docket # 13) be and the same is hereby GRANTED and the Attorney General of the State of Wisconsin is hereby DISMISSED as a respondent in this case.