Ward v. Gray

Filing 42

MEMORANDUM AND ORDER ENTERED: Respondent's motion 34 to strike is denied. Respondent's motion 37 for an extension of time to file an answer is denied as moot. Petitioner's motion 40 for an extension of time to file a response to the motion to dismiss is granted. Signed by Senior District Judge Richard D. Rogers on 2/28/2012. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN SCOTT WARD,
Petitioner,
v.

CASE NO. 10-3047-RDR

COLONEL ERIC BELCHER,
Commandant, USDB-Fort Leavenworth,
Respondent.

MEMORANDUM AND ORDER
This matter comes before the court on three motions pending in
this

habeas

corpus

action:

(1)

respondent’s

motion

to

strike

supplement (Doc. 34), (2) respondent’s motion for an extension of
time to file an answer (Doc. 37), and (3) petitioner’s motion for an
extension of time to respond to the motion to dismiss (Doc. 40).
The court will address these motions in sequence.
Motion to strike
Respondent moves to strike petitioner’s supplement to the
amended petition (Doc. 34). Petitioner submitted the supplement pro
se and without consulting his appointed counsel.
Under 28 U.S.C. § 1654, “[i]n all courts of the United States
the parties may plead and conduct their own cases personally or by
counsel as, by the rules of such courts, respectively, are permitted
to

manage

and

conduct

causes

therein.”

Thus,

the

statute

contemplates that a party will either with counsel or pro se.
Petitioner has no protected right to proceed both pro se and
with the assistance of counsel. “When defendants have the assistance
of counsel, courts need not consider any filings made pro se.”
United States v. Sandoval-DeLao, 283 F.App’x 621, 625 (10th Cir.
1995)(citing United States v. Bennett, 539 F.2d 45, 49 (10th Cir.
1976). Rather, the court has discretion to allow such a hybrid form
of representation and may consider the submissions of a pro se
party. Id.
In the exercise of its discretion, the court has examined the
supplement submitted by the petitioner and will deny the motion to
strike. However, in the future, petitioner should consult with
counsel concerning any filings to be made in this matter and is
advised

that

the

pleadings filed

court

may

strike

sua

sponte

any

additional

pro se.

Respondent’s motion for extension of time
On June 6, 2011, the court granted respondent an extension of
time to and including July 5, 2011, to file an answer, and the
answer was filed on that date. The present motion to extend the time
to and including July 19, 2011, is denied as moot.
Petitioner’s motion for extension of time
Petitioner

seeks

an

extension

of

time

to

respond

to

respondent’s motion to dismiss this matter as moot. The court finds
good cause and will grant the extension.

2

IT IS, THEREFORE, BY THE COURT ORDERED respondent’s motion to
strike (Doc. 34) is denied.
IT IS FURTHER ORDERED respondent’s motion for an extension of
time to file an answer (Doc. 37) is denied as moot.
IT IS FURTHER ORDERED petitioner’s motion for an extension of
time to file a response to the motion to dismiss (Doc. 40) is
granted.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 28th day of February, 2012, at Topeka, Kansas.

S/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

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