Opinion
No. 03-CIV-5548 ALA HC.
August 21, 2007
ORDER
Petitioner Gabriel Santiago is a state prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. On May 20, 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. Santiago's petition or a motion to dismiss the petition. (Doc. 9). In response to that order, Respondent filed a document on August 18, 2003, entitled "Answer to Petition for Writ of Habeas Corpus." (Doc. 13.) Although titled as an "Answer," the document urges that "[Mr. Santiago's] petition for a writ of habeas corpus should be denied." Id. at 20; see also id. at 3 ("Respondent respectfully submits that the petition for writ of habeas corpus must be dismissed.") 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.
The document Respondent filed on August 18, 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 October 10, 2007;
2. Petitioner shall file a response to Respondent's motion to dismiss on or before October 31, 2007; and,
3. Respondent shall file a reply in support of its motion to dismiss on or before November 14, 2007.