Cook v. Kernan et al

Filing 42

ORDER DENYING MOTION TO STRIKE by Hon. William Alsup denying 28 Motion to Strike.(whalc1, COURT STAFF) (Filed on 10/21/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WALTER JOSEPH COOK,III,

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For the Northern District of California

United States District Court

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No. C 15-06343 WHA

Petitioner,
v.

ORDER DENYING MOTION
TO STRIKE

SCOTT KERNAN,
Respondent.
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INTRODUCTION

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Petitioner, who was convicted of three counts of murder in 1994, moves to strike

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respondent’s answer to his petition for a writ of habeas corpus under 28 U.S.C. Section 2254.

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For the reasons discussed herein, petitioner’s motion is DENIED.

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STATEMENT
Petitioner, represented by counsel, filed his habeas petition on December 31, 2015. On

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July 25, 2016, petitioner obtained new counsel, who are representing petitioner on a pro bono

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basis. On July 29, 2016, respondent filed an answer and accompanying memorandum of points

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and authorities. Petitioner now moves to strike respondent’s answer for failing to “specifically

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admit or deny any of Petitioner’s factual contentions” (Mtn at 1). In the alternative, petitioner

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seeks an extension of 60 days to file a traverse to respondent’s answer to allow counsel to

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familiarize themselves “with the many facts and legal questions at issue” (id. at 6).

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ANALYSIS
Rule 5 of the Rules Governing Section 2254 Cases requires that an answer “address the
allegations in the petition.” Further, Rule 5 requires that the answer “state whether any claim in

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the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity,

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or a statute of limitations.”

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Our court of appeals has clarified that the purpose of “the answer is to frame the issues

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in dispute” but that “[n]either Rule 5, nor the Advisory Notes, nor subsequent case law set out

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any further restrictions on the form of the answer, unlike Federal Rules of Civil Procedure 8(b)

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and 8(d), which require fact-by-fact responses.” Williams v. Calderon, 52 F.3d 1465, 1483 (9th

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Cir. 1995).

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Here, the answer includes a general denial: “Respondent denies each and every

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allegation of the Petition and specifically denies that Petitioner’s custody is in any way
unlawful, that the judgment underlying Petitioner’s custody is in any way unlawful, and that his

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For the Northern District of California

United States District Court

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federal constitutional rights are being violated in any way” (Ans. at 2). However, the

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accompanying memorandum of points and authorities, which is 67 pages long and incorporated

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by reference into the answer, responds in greater detail to each of petitioner’s seven claims.

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Additionally, after a hearing on the instant motion, respondent specifically addressed whether

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petitioner’s mental disabilities impacted the validity of his Miranda waiver and the

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voluntariness of his statements to law enforcement.

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This order concludes that the answer, accompanying memorandum, and the response on

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the issue of petitioner’s alleged mental disability sufficiently “frame the issues in dispute” and

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therefore comply with the requirement of Rule 5. Neither Rule 5 nor case law requires

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respondent to provide a fact-by-fact response to the allegations in the petition. The motion to

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strike is therefore DENIED.

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In the alternative, petitioner requests an extension of 60 days. Respondent does not

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object. The request for an extension is GRANTED. Petitioner shall have until DECEMBER 8,

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2016, to file a traverse.

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CONCLUSION
For the reasons stated herein, the motion to strike is DENIED. For good cause shown,
petitioner’s request for an extension of 60 days to file a traverse is GRANTED.

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IT IS SO ORDERED.

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Dated: October 21, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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