Faust v. Anderson
| Decision Date | 05 May 1999 |
| Docket Number | No. 3:98-CV-0467 AS.,3:98-CV-0467 AS. |
| Citation | 52 F.Supp.2d 930 |
| Parties | Kenneth P. FAUST, Petitioner, v. Ron ANDERSON, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Kenneth P. Faust, Michigan City, IN, pro se.
James A Garrard, Indiana Attorney General, Indiana Government Center South, Indianapolis, IN, for respondent.
Petitioner Kenneth Faust is a prisoner of the State of Indiana, serving an enhanced sixty year sentence on a conviction of murder entered in the Marion Superior Court. The Indiana Supreme Court affirmed the petitioner's conviction in Faust v. State, 642 N.E.2d 1371 (Ind.1994). The Indiana Court of Appeals affirmed the denial of his petition for post-conviction relief in an unpublished opinion, and the Indiana Supreme Court denied transfer.
The undersigned Judge has spent numerous hours in a personal examination of the record and briefs in this case, and has most recently spent several hours going through all of the filings made by this petitioner on January 6, 1999. This court is keenly aware that there must be great indulgence of pro se litigants, particularly pro se prisoner litigants. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). See also McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). This petitioner has engaged in some very heavy-handed verbal attacks on the Office of the Attorney General of Indiana and some named deputies in that office, and has also engaged in a rather widespread generalized attack on the judiciary of the State of Indiana at all levels. While some of this language would not be permitted by a practicing member of the legal profession, it is obvious that this petitioner is not so bound by legal ethics. As distasteful as some of these tactics may be, they are tolerated in the first instance and do not affect the analysis and decision of this case in the second instance. A careful examination of this record fails to disclose that this petitioner has presented a valid claim of actual or factual innocence.
On December 28, 1998, this court entered a memorandum and order denying the relief requested in Mr. Faust's petition. On January 6, 1999, Mr. Faust filed a traverse to the respondent's order to show cause, and moved to reconsider the denial of the relief requested in his petition because the judgment was entered before he had a chance to file his traverse. The court will vacate the entry of judgment in this case and will reconsider the disposition of the petition, taking into account the petitioner's traverse and other submissions that are properly before the court. With the reopening of this case, the court faces a veritable thicket of motions, filed by Mr. Faust, that must be dealt with before returning to the merits of Mr. Faust's petition.
The petitioner filed a series of motions seeking entry of default judgment or to have various submissions by the respondent stricken from the record. On September 28, 1999, Mr. Faust filed a motion for summary judgment. On October 13, 1998, the respondent filed what he labeled as a response to the motion for summary judgment, which actually amounted to a request that the motion for summary judgment be held in abeyance until he filed his response to the order to show cause. Mr. Faust moved to strike this request that his summary judgment motion be held in abeyance. On November 25, 1998, the respondent filed his response to the order to show cause, which effectively also served as a response to the petitioner's summary judgment motion. In his traverse, and in other submissions, Mr. Faust asserts that the respondent committed default by failing to file a proper and timely response to his summary judgment motion and by placing his response to the order to show cause in the mail on the day it was due with the court, resulting in the response being filed two days late.
Entry of a default judgment in a habeas case is extremely disfavored. Bleitner v. Welborn, 15 F.3d 652 (7th Cir. 1994). When a custodian delays the disposition of a petition for writ of habeas corpus, a district court, rather than entering default judgment, ordinarily should proceed to the merits of a petition. Bleitner v. Welborn, 15 F.3d at 653, see also Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984) (); Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970) ().
When it granted the respondent's motion for enlargement of time, the court ordered that the respondent's response to the order to show cause was to be filed by November 23, 1998. The respondent's counsel placed this document in the mail on the date it was due, and it was actually filed two days late. The respondent also filed his motion for enlargement of time within which to respond to the court's order to show cause after the date the response to the order to show cause was to be filed (counsel for the respondent again having mailed the motion for enlargement on the day the response was actually due to be filed). These lapses, however, pale in comparison to the behavior of the respondents in cases such as Bleitner v. Welborn and Bermudez v. Reid, where the courts found default judgment to be an inappropriate remedy. Moreover, the respondent's overall behavior in this case has been diligent and has not delayed the disposition of this petition. Accordingly, the court will deny each of the petitioner's requests for a default judgment.
On October 19, 1998, Mr. Faust filed what he styled as a motion for judgment on the pleadings. A federal habeas corpus proceeding is initiated by a petition, which functionally serves the purpose of a complaint in other civil actions. This court accepted Mr. Faust's petition, and ordered the respondent to show cause why the court should not assume jurisdiction over the case and grant the requested relief. The respondent then filed a response to order to show cause, which functionally served as a combination responsive pleading and motion to dismiss.
A motion for judgment on the pleadings may be filed by a party, "after the pleadings are closed." Fed.R.Civ.P. 12(c). Treating Mr. Faust's petition as a complaint, the pleadings in this case did not close until the respondent filed his responsive pleading. To the extent that a motion for judgment on the pleadings is ever applicable in a § 2254 case, Mr. Faust's motion was premature because he filed it before the respondent filed his response to the order to show cause. Moreover, in the body of his motion, Mr. Faust bottoms his request on the respondent's failure to file a timely response to order — thus making It in actuality yet another motion for default judgment, which the court will deny for the reasons already set forth in this memorandum.
On December 16, 1998, Mr. Faust filed a "substantive objection" to the respondent's return to the order to show cause, in which he requests that "the State's answer should be forthwith strickened [sic] from the record and otherwise disallowed." In this submission, Mr. Faust again suggests that because the respondent did not specifically respond to the petitioner's summary judgment motion, he has "effectively admit[ted] each and all of the material facts going to support our claim of error." The court denied this motion in its memorandum and order of December 28, 1998, and reaffirms the denial of the motion in this memorandum. The response to the order to show cause was effectively also a response to the summary judgment motion, and the petitioner does not state sufficient grounds to strike the return to order to show cause.
A few days later, on December 21, 1998, Mr. Faust filed yet another motion to strike, this time seeking to strike selected portions of the return to the order to show cause. Mr. Faust essentially asserts that the respondent has misstated and misconstrued certain of Mr. Faust's arguments and, consequentially, has proffered "sham" arguments in response. The court will deny the motion to strike, and allow both petitioner and respondent to present their arguments.
In a final squabble between the petitioner and respondent's counsel over the timely filing of documents with the court, the petitioner moves to strike the respondent's response to several of his motions as untimely. On January 12, 1999, the court entered an order affording the Indiana Attorney General "until February 1, 1999, to file written responses to" a series of motions filed by the petitioner on January 6, 1999. As has been his custom in this case, counsel for the respondent placed his responses in the mail on February 1, 1999, the date they were to be filed with the court, and they were not actually filed with the court until February 4, 1999.
In his motion to strike, to which the respondent has not replied, Mr. Faust states that "(f)or the Dep. Attorney General's benefit, the distinction between `file' and `service' is: the `3-day service by mail extension does not apply.'" (Emphasis in original). This language mirrors earlier admonishments given to the respondent's counsel by Mr. Faust regarding timely filing of materials with the court.
Mr. Faust's point concerning the unavailability of the benefit of Fed. R.Civ.P. 6(e) to the respondent in responding to the orders entered by the court in this case is well taken because, in each of the relevant orders, this court established a specific date by which a response was to be filed. If a court does not set forth a "prescribed period" for computation...
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