Alexander Cole v. Warden, NHSP

• Court: District Court, D. New Hampshire
• Decided: May 9, 2001
• Docket: CV-00-296-B
• Status: Published

Opinion

Alexander Cole v . Warden, NHSP CV-00-296-B 05/09/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alexander R. Cole

v. Civil No. 00-296-B 2001DNH106 Michael J. Cunningham, Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

On November 2 1 , 2000, Magistrate Judge Muirhead ordered the

Warden of the New Hampshire State Prison to “file an answer or

other pleading” in response to Alexander Cole’s habeas corpus

petition. In lieu of an answer, the Warden filed a motion to

dismiss asserting that Cole: (1) procedurally defaulted on many

of his claims in state court; (2) failed to exhaust state

remedies with respect to some of his claims; and (3) failed to

state viable claims for relief.

The Warden’s motion does not identify the rule of civil

procedure on which it is based. Nor does it describe the

standard of review that I should use in resolving the motion.

Because the motion depends in part on documents that were not filed with Cole’s original petition, it is unclear whether I

should treat the motion as a motion for summary judgment or a

motion to dismiss. Rather than resolve this question, I deny the

motion without prejudice to the Warden’s right to renew his

arguments either in a motion to reconsider or in a motion for

summary judgment.

The United States Supreme Court has adopted rules that

govern the processing of habeas corpus petitions in the United

States District Courts. See Rule 1 of the Rules Governing

Section 2254 Cases in the United States District Courts, 28

U.S.C. following § 2254. These rules specify that all habeas

corpus petitions must be reviewed by the court before they are

served. Id. at Rule 4 . The court must dismiss a petition under

these rules if “it plainly appears from the face of the petition

and any exhibits annexed to it that the petitioner is not

entitled to relief in the district court.” Id. at Rule 4 . If

summary dismissal is not warranted, the court must instead order

the respondent to file an “answer or other pleading.” Id. at

Rule 4 . The rules do not specify what motions a respondent may

file in lieu of an answer. However, Rule 11 states that “[t]he

Federal Rules of Civil Procedure, to the extent that they are not

-2- inconsistent with these rules, may be applied, when appropriate,

to petitions filed under these rules.” Id. at Rule 1 1 .

Magistrate Judge Muirhead carefully reviewed Cole’s habeas

corpus claims before he directed the Warden to respond. This

review necessarily included an inquiry into whether the petition

should be dismissed either because it failed to state a viable

claim for relief or for some other reason such as lack of

jurisdiction, the statute of limitations, a failure to exhaust

state remedies, or a procedural default. Because the Magistrate

Judge has already examined the facial sufficiency of Cole’s

petition, any subsequent challenge to the sufficiency of the

petition should be made in the form of a motion to reconsider the

Magistrate Judge’s Rule 4 decision. If such a motion is filed in

lieu of an answer, it shall be based solely on the petition

itself or any documents that are attached to or referenced in the

petition.

If the Warden intends to file a dispositive motion based on

documents that were not attached to or referenced in Cole’s

habeas corpus petition, he may file a motion for summary judgment

in lieu of an answer. By filing such a motion, the Warden will

place Cole on notice that the motion is subject to the standard

-3- of review specified in Federal Rule of Civil Procedure 5 6 . If

the Warden decides not to file either a motion to reconsider or a

motion for summary judgment, he shall file an answer in

accordance with Rule 5 . Any motion or answer shall be filed on

or before June 4 , 2001.

The Attorney General’s Office shall follow this procedure in

all future habeas corpus cases that are assigned to m e .

SO ORDERED.

Paul Barbadoro Chief Judge

May 9, 2001

cc: Alexander R. Cole, pro se N . William Delker, Esq.

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