Opinion
2:99-CV-0389, **Capital Litigant**.
September 27, 2001.
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
Came this date for consideration the above-entitled motion filed by respondent GARY L. JOHNSON on December 7, 2000. Respondent's summary judgment motion is not a separate pleading but, instead, is urged in a combined pleading which also includes an answer and a supporting brief. As the answer meets the requirements of Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts and addresses the merits of petitioner's habeas application, as well as alleging purported procedural defaults and/or bars, the motion for summary judgment is unnecessary. Consequently, the motion for summary judgment is DENIED as moot. Petitioner's habeas application will be determined on the basis of respondent's answer.
If, for some reason, respondent contends the motion for summary judgment provides some avenue for relief not available by answer alone, or contends the denial of the motion for summary judgment prejudices respondent in some way, then respondent may file a motion requesting reconsideration of this Order. Any motion for reconsideration is due within ten (10) days of the entry of this Order.
IT IS SO ORDERED.