Opinion
2:16-cr-0102 KJM CKD P
10-27-2022
UNITED STATES OF AMERICA, Respondent, v. MATTHEW GENE BALLARD, Movant.
ORDER
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
Movant is a federal prisoner proceeding with counsel with an amended motion for habeas corpus relief pursuant to 28 U.S.C. § 2255. He raises nine claims in his amended motion. On April 25, 2022, the court ordered that respondent file an answer to movant's amended § 2255 motion within 45 days.
Instead of filing an answer, respondent filed a “Response and Motion to Dismiss 28 U.S.C. § 2255 Petition Remaining Grounds 2 and 9 Pursuant to ECF 139.” Respondent opens the “Response and Motion to Dismiss . . .” as follows:
Via Orders on 8/25/21 and 4/25/22, this Court resolved all outstanding matters in the instant 28 U.S.C. § 2255 proceeding (Amended Motion Grounds 1 through 9 in ECF 75) except in one respect: final briefing for purposes of determination of Ballard's claims of ineffective assistance of counsel (IAC) as contained in Ballard's Amended Motion Grounds 2 and 9. ECF 127 p 1, 6, 139.
To date, no ruling has been made on any of movant's nine claims. In its August 25, 2021, order, the court identified certain flaws with some aspects of some of movant's claims (with some of the flaws being potentially fatal to some of the claims) in resolving discovery motions brought by both parties. However, no claims were dismissed or denied, and no reasonable interpretation of the court's order could support the conclusion that the court was of the opinion that all claims except for claims 2 and 9 have no merit and required no further response by respondent.
Furthermore, absent stipulation of both parties, dismissal or denial with respect to any claim can only be ordered by the district court judge assigned to this case following findings and recommendations from the undersigned. The court has not issued findings and recommendations as to the resolution of any of movant's claims.
Under Rule 5(b) of the Rules Governing Section 2255 cases, once the court orders the respondent to file an answer, “[t]he answer must address the allegations in the motion.” Local Rule 110 authorizes the court to issue sanctions for failure to follow any court order.
Good cause appearing, respondent's “Response and Motion to Dismiss 28 U.S.C. § 2255 Petition Remaining Grounds 2 and 9 Pursuant to ECF 139” will be stricken and respondent will be granted 30 days within which to file an answer as to all claims presented in the amended § 2255 motion. Respondent is free to cite anything in the court's August 25, 2021 order in support of opposition to any claim, but each claim must be addressed. If counsel for respondent fails to comply with this order in any respect, sanctions may issue. Furthermore, failure to respond to any particular claim may be deemed an admission as to the validity of the claim and the relief requested in the amended § 2255 motion being granted.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Respondent's “Response and Motion to Dismiss 28 U.S.C. § 2255 Petition Remaining Grounds 2 and 9 Pursuant to ECF 139” (ECF No. 140) is stricken.
2. Respondent shall file an answer concerning movant's amended 28 U.S.C. § 2255 motion within 30 days. Movant may file a traverse within 30 days of filing of the answer.