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McNally v. O'Flynn

March 10, 2010

PETER MCNALLY, 09-B-3214, PETITIONER,
v.
MR. PATRICK O'FLYNN,*FN1 RESPONDENT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION*fn2 and ORDER REPORT RECOMMENDATION

JURISDICTION

This action was referred to the undersigned by Honorable William J. Skretny on November 19, 2009, for all proceedings necessary to determination of the factual and legal issues pretrial matters, and to prepare and submit a report and recommendation containing findings of fact, conclusions of law and a recommended disposition of the case. The matter is presently before the court on Petitioner Peter McNally's ("Petitioner") motions to amend/correct the case caption (Doc. 4), to appoint counsel (Doc. No. 5 and Doc. No. 19), to appoint an investigator (Doc. No. 6 and Doc. No. 25), for a stay (Doc. No. 7), for a change of venue and a stay of prosecution (Doc. No. 8), to produce and for a time extension (Doc. No. 9), for proper context to be added (Doc. No. 10), for a jury trial (Doc. No. 18), for summary judgment (Doc. No. 20 and Doc. No. 27), for judgment by default (Doc. No. 21 and Doc. No. 26) and to dismiss all charges (Doc. No. 24).

BACKGROUND

Petitioner, commenced this habeas corpus action pursuant to 28 U.S.C. § 2254 on July 7, 2009 (Doc. No. 1), and applied for leave to file in forma pauperis (Doc. No. 2). By Order filed July 17, 2009 ("July 17 Order") (Doc. No. 3), the Honorable Richard J. Arcara granted his motion for leave to file as a poor person, and directed the Respondent to file and serve an answer to the petition and memorandum of law by no later than August 31, 2009). Respondent moved for an extension of time to answer (Doc. No. 12)*fn3 and the answer was filed thereafter on October 30, 2009 (Doc. No. 17).

Petitioner's motions, enumerated above, were filed with the Clerk of the Court both before and after the filing of the Respondent's answer. Seven motions were filed in July/August, 2009 (Docket Nos. 4-10), followed by another four motions in both November, 2009 (Docket Nos. 18-21), and February, 2010 (Docket Nos. 24-27). The record contains no Affirmations of Service indicating that Petitioner served Respondent with any of the motions before the Court, as enumerated above, nor has Petitioner otherwise averred to having served a copy of his motions on the Respondent. As a result, Respondent has filed no responses to any of Petitioner's motions.

For reasons explained below, the Court determines that Petitioner's Motion for a Jury Trial must be DISMISSED with prejudice, that his Motion to Amend, Motions to Appoint Counsel, Motions to Appoint Investigator, Motion for a Stay, Motion to Change Venue, Motion to Produce, Motion for Proper Context, and Motion to Dismiss must be DISMISSED without prejudice, that his Motions for Judgment by Default should be dismissed with prejudice, and his Motions for Summary Judgment should be DISMISSED without prejudice.

DISCUSSION

All parties, including those proceeding pro se, are required to comply with the Federal Rules of Civil Procedure. See McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (all litigants, including those proceeding pro se, are obligated to comply with court orders and the Federal Rules of Civil Procedure); see Local Rules Civil Procedure, WDNY, Rule 5.2(e) ("It is the responsibility of all pro se litigants to become familiarity with, to follow, and to comply with the Federal Rules of Civil Procedure . . .."). The Federal Rules of Civil Procedure apply to cases arising under 28 U.S.C. § 2254 through Rule 12 of the Rules Governing Section 2254 Cases, which provides: "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." Rule 12 of the Rules Governing Section 2254 Cases.

As relevant to the instant case, Fed. R. Civ. P. 5(a)(1)(D) requires that service "on every party" of, inter alia, "a written motion, except one that may be heard ex parte. . .." Until served, a pleading or motion has no effect. See International Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir. 1977) (amended complaint remains inchoate until served pursuant to Fed. R. Civ. P. 5(a)), cert. denied, 434 U.S. 1014 (1978).

In the instant case, because Petitioner failed to serve the Respondent with the motions enumerated above, Petitioner's motions to amend, to appoint counsel, to appoint an investigator, to obtain a stay, to change venue, to produce, for a proper context and to dismiss are DISMISSED without prejudice. Petitioner's motions for summary judgment should be DISMISSED without prejudice.

Regardless of Petitioner's failure to serve Respondent, in the interest of judicial economy, Petitioner's motion for a jury trial must be DISMISSED with prejudice. A petitioner is not entitled to a jury trial in a habeas action. Title 28 U.S.C. § 2243 provides that in a habeas proceeding "the court shall summarily hear and determine the facts, and dispose of the matter as law and justice require."; see also Sigler v. Parker, 396 U.S. 482, 486, n. 1 (1970) (Douglas, J., dissenting) ("The rule that there is no right to jury trial in habeas corpus cases has been codified in the federal statute, 28 U.S.C. § 2243: 'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.'"). Thus, this request is DISMISSED.

Petitioner's motions for default judgment (Doc. No. 21 and Doc. No. 26) should be DISMISSED with prejudice. Petitioner's request for default judgment is based upon the Respondent's failure to file an answer to the Petition by August 31, 2009, as directed by the July 17 Order. While Respondent did not file an answer by August 31, 2009, Respondent filed on that date a Motion for an Extension of Time to Answer (Doc. No. 12) requesting that Respondent be given an additional sixty days to file his answer. Respondent subsequently filed his answer sixty days later (October 30, 2009), prior to the filing of Petitioner's motion for default judgment. Even if the Court were to determine that Respondent was in default for failure to timely file his responsive pleading, relevant Second Circuit precedent precludes the Court from granting a habeas petitioner's motion for default judgment based on respondent's failure to file his answer on time. See Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.) (stating that in the context of habeas petitions, entry of default judgment is not warranted unless the petitioner establishes "a claim or right to relief by evidence satisfactory to the court"), cert. denied, 469 U.S. 874 (1984). Thus, this motion should be DENIED irrespective of Petitioner's failure to serve it on Respondent.

As explained above, all but two of Petitioner's eleven motions are being dismissed or should be dismissed without prejudice because of his failure to effect proper service upon the Respondent, meaning that Petitioner can refile one or more of those motions if he complies with the service requirement of Fed.R.Civ.P. 5(a)(1)(D) . Several of Petitioner's motions, such as his motions for the appointment of counsel (Doc. No. 5 and Doc. No. 19), simply assert his request for certain relief without providing any basis for the relief requested in the form of a supporting Affidavit or explanatory statement in the motion itself. See Pro Se Litigation Guidelines, United States District Court, Western District of New York, at 11-13 (discussing the documents to be submitted in support of a motion, including an affidavit explaining the basis for the requested relief). Several other motions request relief the relevance or propriety of which in a habeas corpus proceeding is not readily apparent, or which appears to be irrelevant to the 2004 conviction in the New York State Supreme Court, Monroe County conviction that the petition is seeking to challenge. See, e.g., Petitioner's Motion for a Stay ...


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