Opinion
No. CIV 03-05323 ALA HC.
August 21, 2007
ORDER
Stewart Leland Cowan has filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. On June 6, 2003 the Court issued an order, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, directing Respondent to file either an answer to Mr. Cowan's petition or a motion to dismiss the petition. See Docket No. 10. In response to that order, Respondent filed a document on September 2, 2003, entitled "Answer to Petition for Writ of Habeas Corpus." Although titled as an "Answer," the document requests "that [Mr. Cowan's] petition be denied on the merits." Docket No. 14 at 1; see also id. at 19 ("Respondent respectfully urges this Court to deny the petition for writ of habeas corpus.") It also contains a section entitled "Memorandum of Points and Authorities . . ." in which Respondent sets forth substantive arguments on the merits of petitioner's claims. Petitioner, apparently believing that the document was a motion to dismiss, filed a document on September 26, 2003 entitled "Petitioner's Response to Respondent's Motion to Dismiss." Docket No. 16.
The document Respondent filed on September 2, 2003 appears to be neither an answer nor a motion to dismiss. An answer is not a proper vehicle by which to seek dismissal. Respondent should instead have requested dismissal by filing a motion to dismiss, which is a proper motion in a § 2254 proceeding. White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989).
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Respondent shall file a properly-titled motion to dismiss, setting forth the arguments contained in Respondent's "Answer to Petition for Writ of Habeas Corpus," on or before Monday, September 24, 2007;
2. Petitioner shall file a response to Respondent's motion to dismiss on or before Monday, October 8, 2007; and,
3. Respondent shall file a reply in support of its motion to dismiss on or before Monday, October 15, 2007.