Summary
denying summary judgment filed before time to file response to petition was due
Summary of this case from Holley v. CournoyerOpinion
98-CV-0084 (NAM/GLS).
February 2, 2000
TED A. DELINOIS, Petitioner, Pro Se, FCI Ray Brook, Ray Brook, New York, FOR THE PETITIONER.
HON. DANIEL J. FRENCH, U.S. Attorney, OF COUNSEL, Charles E. Roberts, Esq., Asst. U.S. Attorney, Syracuse, NY, FOR THE RESPONDENT.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). Presently before the court is an April 28, 1999, filing by the petitioner self-styled as a "motion for summary judgment." (Dkt. No. 12). For the reasons that follow, this court recommends that petitioner's motion be denied.
Petitioner filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2241 on January 16, 1998. (Dkt. No. 1). On March 12, 1998, this court ordered service of the petition on respondent and required service of an answer or other pleading. (Dkt. No. 2). On May 5, 1998, respondent sought an extension to answer because petitioner's underlying conviction occurred in the Western District of Virginia. (Dkt. No. 5). On July 10, 1998, respondent filed his answer seeking dismissal of the petition. (Dkt. No. 6). Petitioner filed a traverse on August 19, 1998. (Dkt. No. 7).
On January 14, 1999, petitioner filed a motion pursuant to Local Rule 7.1 seeking to amend his petition in light of respondent's answer. (Dkt. No. 9). In light of the answer, petitioner believed that respondent had misunderstood his claims and sought amendment for purposes of clarification. Id. Respondent was ordered to submit his motion response by January 28, 1999, subsequently extended to March 8, 1999. (Dkt. Nos. 9-10). On March 9, 1999, respondent consented to the amendment. (Dkt. No. 11).
On April 28, 1999, petitioner filed a document styled "motion for summary judgment." (Dkt. No. 12). In his motion, petitioner asserts that respondent's consent to the amended pleading was instead consent to the granting of his petition. Id. at 2, ¶ 7. Naturally, a plain reading of the documents reveals a complete misunderstanding by petitioner. The consent to petitioner's motion to amend does not contravene the answer which seeks dismissal of the petition. (See Respondent's Ltr., Dkt. No. 15). Furthermore, petitioner's motion seeks judgment on a pleading which is no longer in effect since his motion to amend the petition was granted on November 26, 1999. (Dkt. No. 18). Respondent is not even required to answer until thirty days from service upon him of the amended petition. Id.
Although a motion for summary judgment may be an appropriate procedural mechanism in certain habeas proceedings, McBride v. Sharpe, 25 F.3d 1200 (11th Cir. 1994), this is not such a case. Supported as it is by a misreading of respondent's consent to amend, petitioner's motion hardly dictates that the court deviate from either the Local Rules or the rules governing Section 2255 cases in the United States District Courts, 28 U.S.C. foll. § 2255. Furthermore, summary judgment motions in this district must comply with Local Rule 7.1(a), and failure to comply "shall result in a denial of the motion." Id. at 7.1(a)(3). Other than filing a document styled "motion for summary judgment," petitioner has not complied with any other requirement of the rule.
As such, and because respondent's time to answer the amended petition has not yet expired, this court recommends that petitioner's "motion for summary judgment" should be denied.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the motion (Dkt. No. 12) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN DAYS (10) within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.