DAVID D. RICHARDSON, Petitioner,
BRIAN THOMPSON; JOHN E. WETZEL; LINDA KELLY, Respondents.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, Magistrate Judge.
It is respectfully recommended that the Petition purportedly filed pursuant to 28 U.S.C. § 2241 for Writ of Habeas Corpus (the "Petition"), be dismissed pre-service for failing to state a claim that is cognizable in habeas and/or for being meritless. A certificate of appealability should be denied.
A. Relevant Procedural History
David D. Richardson ("Petitioner") is a prisoner currently incarcerated at the State Correctional Institution in Mercer ("SCI-Mercer"). He is a frequent filer in both the federal and state courts. As a consequence of his litigation activities in state court, he has accumulated three strikes under the Pennsylvania version of the Prison Litigation Reform Act, 42 Pa.C.S.A. § 6602(f) ("Section 6602(f)"). Richardson v. Thomas , 964 A.2d 61 (Pa. Cmwlth. 2009) (affirming Common Pleas Court denial of leave to proceed in forma pauperis because Petitioner acquired three strikes in the Pennsylvania state courts).
In the instant Petition, Petitioner seeks to challenge the constitutionality of 42 Pa.C.S.A. § 6602(f) asserting that he "seeks judgment in his favor declaring § 6602(f) unconstitutional in violation of Petitioner's right to due process under the 14th Amendment." ECF No. 1-1 at 1. Because Petitioner's claim is not cognizable in habeas proceedings, the Petition should be dismissed prior to being served for failing to state a claim. Alternatively, the Petition is meritless.
B. Rule 4 Pre-Service Dismissals
Notwithstanding the fact that the Respondents have not been formally served with process yet, pursuant to Rule 4 of the Rules Governing Section 2254 cases ("Rule 4"),  this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to relief under habeas. Rule 4 provides in relevant part that:
The clerk must promptly forward the [habeas] petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In interpreting Rule 4, the Advisory Committee Notes to Rule 4 state that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, "unless it appears from the application that the applicant or person detained is not entitled thereto." Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.
In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records, dockets and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D.Tex. Jan. 8, 2002)(in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998)(in a Rule 4 summary dismissal, the court took "judicial notice of the opinion of the Illinois Appellate Court in this case.").
In the case at issue, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition should be dismissed pre-service because Petitioner fails to state a claim ...