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UKAWABUTU v. MORTON

March 9, 1998

RA'ZULU S. UKAWABUTU, Petitioner,
v.
WILLIS MORTON, Administrator, New Jersey State Prison and PETER VERNIERO, ESQ., Attorney General of New Jersey, Respondents.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 For the second time in this habeas corpus case, Respondents have filed a separate motion to dismiss the petition filed by Petitioner, Ra'Zulu S. Ukawabutu. The present motion to dismiss has been advanced on the ground that the petition contains both exhausted and unexhausted *fn1" claims and thus, is mixed and should be dismissed. The filing of a second successive "piecemeal" motion by Respondents in this case requires this Court to set forth and explain the procedures which have been adopted to litigate and manage the disposition of habeas corpus petitions in United States District Courts. Although I cannot discern from the record whether the filing of "piecemeal" motions to dismiss in this case by the State is the result of inadvertence or design, it is a practice which is inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts, a recently enacted federal statute which gives district courts the discretion to consider and deny unexhausted claims on their merits, 28 U.S.C. § 2254(b)(2), and fundamental principles of efficient case management. For the reasons set forth below, Respondents' second motion to dismiss will be denied without prejudice to Respondents' right to assert failure to exhaust as a defense in their answer.

 I. Facts and Procedural History

 On June 21, 1991, Ra'Zulu Shameek Ukawabutu ("Petitioner"), formerly known as Shawn Maurice Jackson, was found guilty in a non-jury trial by Judge Robert Neustadter of the Superior Court of New Jersey, Law Division, Atlantic County, on all counts of an eleven-count indictment. The indictment included charges for conspiracy, kidnaping, robbery, and murder. Petitioner appealed the sentence and the conviction to the Superior Court of New Jersey, Appellate Division. On April 25, 1994, the Appellate Division remanded the case to the Law Division, determining that Petitioner was entitled to a new evidentiary hearing to challenge the admissibility of certain oral and taped statements that Petitioner had given to the police.

 On September 21, 1994, on remand, Judge Neustadter held that the prosecution had established both that Petitioner's confession was not the product of his initial statement and that the taint of the initial statement was sufficiently attenuated to warrant admission of Petitioner's confession at trial. On April 7, 1995, the Appellate Division affirmed Petitioner's conviction and sentence. Finally, on June 7, 1995, the Supreme Court of New Jersey denied Petitioner's petition for certification.

 Subsequently, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a request to proceed in forma pauperis. On June 11, 1997, this Court granted Petitioner's request that he be allowed to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and ordered Respondents to answer the petition within 45 days.

 Respondents did not answer the petition, but instead filed a motion to dismiss the petition on the ground that the petition was filed after the one-year statute of limitations period had expired. On September 5, 1997, in an unpublished Opinion and Order, Ukawabutu v. Morton, et al., Civil Action Nos. 3252, 2888, Opinion & Order (D.N.J. Sept. 5, 1997), this Court denied Respondents' motion to dismiss, finding that Petitioner had filed his petition within the one-year statute of limitations established by 28 U.S.C. § 2244. Instead of filing an answer, on October 7, 1997, Respondents filed this second motion to dismiss, claiming that the petition contains both exhausted and unexhausted claims, and therefore, should be dismissed.

 II. Federal Habeas Corpus Procedure

 Respondents in habeas corpus cases have long lacked precise and practical instructions regarding the appropriate procedures for responding to a federal habeas corpus petition. Perhaps as a result, respondents frequently file motions to dismiss a habeas petition in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure, rather than file an answer. Although there has been considerable confusion in this area of the law, I hold that the proper response to a habeas corpus petition is an answer prepared in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, and that a motion to dismiss is appropriate only if, in its discretion, the district court directs or permits the respondents to file such a motion, either before or after the filing of an answer.

 The enactment of the Rules Governing Section 2254 Cases in the United States District Courts (the "Habeas Corpus Rules" or "Hab. Corp. R.") altered the procedural landscape of federal habeas corpus cases. *fn2" Prior to the adoption of the Habeas Corpus Rules, a motion to dismiss was deemed an inappropriate response to a habeas petition. See Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 269 n.14, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978). The Habeas Corpus Rules confer "ample discretionary authority" on district courts "to tailor the proceedings" in habeas cases. See Lonchar v. Thomas, 517 U.S. 314, 116 S. Ct. 1293, 1299, 134 L. Ed. 2d 440 (1996). Thus, if the court does not summarily dismiss a petition, "the judge shall order the respondent to file an answer or other pleading . . . or to take such other actions as the judge deems appropriate." Hab. Corp. R. 4.

 A motion to dismiss is not an "answer or other pleading." See Fed. R. Civ. P. 7(a); Willis v. Collins, 989 F.2d 187, 189 (5th Cir. 1993). The district court certainly has discretion to order or permit respondents, upon request, to file a motion to dismiss as one of the "other actions" which the court may allow, including the discretion to permit the filing of a motion to dismiss before a respondent files an answer. See Hab. Corp. R. 4 advisory committee's note; White v. Lewis, 874 F.2d 599 (9th Cir. 1989). Thus, although "the state has no right, as it would in non-habeas civil litigation, to file a 12(b)(6) motion to dismiss, the Court now has the discretion to allow such a motion where . . . the issues raised by the state are appropriate for summary resolution." Shariff v. Artuz, 1998 U.S. Dist. LEXIS 371, 1998 WL 17734, *1 n.1 (S.D.N.Y. Jan. 16, 1998).

 While these procedures may always be tailored to fit the needs of individual cases, I believe that Judge Grady of the Northern District of Illinois has aptly described the normal initial steps in a habeas case:

 
First, the petition is filed. Next, pursuant to Habeas Corpus Rule 4, the federal court reviews the petition to determine whether, on its face, the petition indicates that the petitioner is not entitled to relief in federal court. If the court determines that the petition passes this minimal test, the respondent is directed to answer the petition. . . . After a respondent answers and files the state record pursuant to ...

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