Bell v. Banks

Filing 10

ORDER denying 7 Motion to Strike Signed by District Judge Louis Guirola, Jr on 08/28/2018 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KELVIN L. BELL
v.

PETITIONER
CAUSE NO. 1:18CV179-LG-RHW

JACQUELYN BANKS,
Superintendent
for South Mississippi
Correctional Institution

RESPONDENT

ORDER DENYING PETITIONER’S MOTION
TO STRIKE RESPONDENT’S ANSWER
BEFORE THE COURT is the petitioner Kelvin L. Bell’s [7] Motion to Strike
the respondent’s answer. The respondent filed a response in opposition to the
Motion, but the petitioner did not file a reply. After reviewing the submissions of
the parties, the record in this matter, and the applicable law, the Court finds that
the petitioner’s Motion to Strike should be denied.
BACKGROUND
After a jury convicted the petitioner of two counts of aggravated assaultdomestic violence, the Circuit Court of Warren County, Mississippi sentenced him
to twenty years in the custody of the Mississippi Department of Corrections with
fifteen years to serve, five years suspended, and five years of post-release
supervision. The petitioner appealed his conviction and sentence, and he sought
release pending appeal, which was denied by both the trial court and the
Mississippi Court of Appeals. The petitioner, who is represented by counsel, then
filed the present petition for writ of habeas corpus alleging that the state courts

improperly used his mental illness as grounds to deny him bail pending appeal. He
has attempted to file claims for (1) denial of his equal protection and due process
rights under the United States Constitution and (2) violation of the Americans with
Disabilities Act.
DISCUSSION
The petitioner asks the Court to strike the respondent’s answer to his
petition because the answer references 28 U.S.C. § 2254. According to the
petitioner, his claims must be considered under 28 U.S.C. § 2241 and he will be
prejudiced if the Court applies § 2254. The petitioner argues that he is not
attacking his state court conviction or sentence in his habeas petition; rather, he is
contesting the state court’s denial of bail pending appeal.
“The Court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
“Partly because of the practical difficulty of deciding cases without a factual record
it is well established that the action of striking a pleading should be sparingly used
by the Courts. . . . It is a drastic remedy to be resorted to only when required for the
purposes of justice.” Augustus v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5th Cir.
1962). Nevertheless, a Rule 12(f) motion can be granted when a defense is
insufficient as a matter of law. Kaiser Alum. & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982).
In Hartfield v. Osborne, 808 F.3d 1066 (5th Cir. 2015), the Fifth Circuit
addressed the question of “[w]hether § 2254 governs a habeas application when the

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petitioner is currently in custody pursuant to a state court judgment, but was not at
the time of filing . . . .” Id. at 1071. The court found that Hatfield’s arguments that
the court should not recharacterize his petition as one brought under § 2254 were
unpersuasive, because “[t]he question is not whether his petition may be
recharacterized as brought under § 2254, but whether § 2254 applies to his petition
in addition to § 2241.” Id. at 1073. The court held that “the plain language of §
2254 includes Hartfield’s current petition for a writ.” Id. at 1071. District court
cases construing Hartfield have held, “The statutory requirements of § 2254 apply
any time a state court prisoner files a habeas case in a federal district court. To
hold otherwise would create an avenue allowing state prisoners to evade the
requirements of § 2254 . . . .” Miller v. Stephens, No. 2:14cv0103, 2017 WL 3142402,
at 5 (N.D. Tex. June 15, 2017); see also Thomley v. Stephens, No. 3:13cv309, 2016
WL 1644378, at *2 (S.D. Tex. Apr. 21, 2016)).
In the present case, the petitioner is in custody pursuant to a state court
judgment. Therefore, references to § 2254 in the respondent’s Answer are not
insufficient, immaterial, or otherwise improper under Fed. R. Civ P. 12(f). The
petitioner’s Motion to Strike must be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the petitioner
Kelvin L. Bell’s [7] Motion to Strike the respondent’s answer is DENIED.
SO ORDERED AND ADJUDGED this the 28th day of August, 2018.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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