Kozak v. United States of America
Filing
27
OPINION AND ORDER denying 25 Motion for Judgment on the Pleadings; denying 26 Motion for Bond. Signed by Judge John E. Steele on 12/13/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHEN KOZAK,
Petitioner,
v.
Case No: 2:15-cv-150-FtM-29CM
Case No. 2:11-CR-121-FTM-29CM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner's Motion for
Judgment on the Pleadings (Fed. R. Civ. P. 12(c)) (Doc. #25) filed
on September 28, 2015, and Petition for Bond to Secure Stay of
Enforcement of Judgment Pending Motion for Dismissal (Fed. R. Civ.
P. 62(b)) (Doc. #26) filed on December 9, 2016.
Petitioner seeks judgment in his favor because the pleadings
are now closed, because the facts are undisputed as to Grounds Two
and Three, and because the Court lacked territorial and subjectmatter jurisdiction.
“Judgment on the pleadings is appropriate
where there are no material facts in dispute and the moving party
is entitled to judgment as a matter of law.”
Perez v. Wells Fargo
N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (quoting Cannon v. City
of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)).
Under
Rule 12(c), “[a] fter the pleadings are closed--but early enough
not
to
delay
trial--a
party
may
move
for
judgment
on
the
pleadings.”
Fed. R. Civ. P. 12(c).
“When only a single pleading
has been filed, ‘competing pleadings’ do not exist, so a motion
for judgment on the pleadings is not appropriate.”
F.3d at 1336 (citation omitted).
Perez, 774
Therefore, when the filing of
an answer has no application to a habeas petition, Rule 12(c) would
not apply.
See, e.g., Allen v. Perini, 424 F.2d 134, 138 (6th
Cir. 1970) (finding that a response to a habeas petition was not
an answer within the meaning of Rule 12); Florida Evergreen Foliage
v. E.I. DuPont De Nemours & Co., 165 F. Supp. 2d 1345, 1349 (S.D.
Fla.
2001)
(pleadings
include
the
complaint,
answers,
counterclaim, and crossclaims), aff'd sub nom. Green Leaf Nursery
v. E.I. DuPont De Nemours & Co., 341 F.3d 1292 (11th Cir. 2003).
The motion will be denied on this basis.
In the alternative, the government responded in opposition to
each
ground
presented
by
petitioner,
including
Ground
One
asserting ineffective assistance of counsel for failure to object
to Count Two of the Indictment; Ground Two asserting ineffective
assistance of counsel for advising petitioner to enter a plea of
guilty that was not voluntary or knowing; Ground Three regarding
counsel’s failure to object to the sufficiency of Count One of the
Indictment; and Ground Four regarding counsel’s failure to require
the government to prove territorial, legislative, and subject-
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matter jurisdiction.
(Doc. #2.) 1
Although the material facts of
the underlying criminal record are undisputed, it is not clear
that petitioner is entitled to judgment as a matter of law “based
on the substance of the pleadings and any judicially noticed
facts.”
Barnett v. Baldwin Cty. Bd. of Educ., 60 F. Supp. 3d
1216, 1223–24 (S.D. Ala. 2014).
None of the Grounds for relief
are conceded, and the habeas petition remains under advisement.
The motion will be denied.
Petitioner seeks to be released on bond pending a decision on
his habeas petition in his favor based on the “conceded facts” in
his motion.
As noted above, the Court finds no conceded facts,
and in any event, Federal Rule of Civil Procedure 62(b) stays
execution of a judgment pending disposition of only 4 types of
motions, none of which are at issue here.
The motion will be
denied.
Accordingly, it is hereby
ORDERED:
1. Petitioner’s Motion for Judgment on the Pleadings (Fed. R.
Civ. P. 12(c)) (Doc. #25) is DENIED.
1 In his Memorandum in Support (Doc. #2), petitioner also
asserted jurisdictional issues specific to Grounds Two and Three.
- 3 -
2. Petitioner's
Petition
for
Bond
to
Secure
Stay
of
Enforcement of Judgment Pending Motion for Dismissal (Fed.
R. Civ. P. 62(b)) (Doc. #26) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.
Copies:
Petitioner
AUSA
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13th
day
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