The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner's motion to either strike the answer, or to strike the assertions of non-retroactivity under Teague v. Lane, 487 U.S. 288 (1989), and require a more definite statement came on for hearing on September 15, 2011, before the undersigned. Allison Claire appeared for petitioner. Richard Neuhoff appeared by telephone for petitioner. Daniel Bernstein appeared for respondent. During the hearing, the court also raised issues about scheduling. In particular, the parties were asked to consider whether it might be more efficient to address the 28 U.S.C. § 2254(d) issues prior to addressing the procedural default issues raised in respondent's motion to dismiss.
After reviewing the parties' briefs and hearing the arguments of counsel, and good cause appearing, it is hereby ordered as follows.
I. Specificity of the Answer
Petitioner argues that respondent should be required to admit or deny each factual allegation in the petition. Petitioner cites little authority to support his position except for his reading of Rule 5 of the Rules Governing Section 2254 Cases and an appeal to the common sense notion that each party's positions should be fully set out at the beginning of the case. For the reasons stated below, petitioner's motion is denied.
(b) Contents: Addressing the Allegations; Stating a Bar. The answer must address the allegations in the petition. In addition, it must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.
Rule 5 also requires the respondent to provide relevant state court records. Petitioner relies on the Advisory Committee Notes to Rule 5 which state:
The answer plays an obviously important role in a habeas proceeding: "The return serves several important functions: it permits the court and the parties to uncover quickly the disputed issues; it may reveal to the petitioner's attorney grounds for release that the petitioner did not know; and it may demonstrate that the petitioner's claim is wholly without merit."
Developments in the Law--Federal Habeas Corpus, 83 Harv. L. Rev. 1083, 1178 (1970).
Petitioner relies on a few cases which define, in general terms, the purpose of the answer as being to frame the issues. For example, A proper return by the state will contain 'factual allegations of the kind which the show cause procedure was designed to elicit, responding directly to those of the petition.' Copies of relevant state court records will normally be attached to the return. In his traverse the petitioner 'may, under oath, deny any of the facts set forth in the return or allege any other material facts.' 28 U.S.C. §2243 (1964). The record thus constituted will bring the factual issues, if any, into proper focus and provide a more satisfactory basis for determining whether an evidentiary hearing is required.
Peterson v. Wilson, 373 F.2d 737, 738-39 (9th Cir. 1967) (internal citations omitted); see also Chavez v. Morgan, 932 F. Supp. 1152 (E.D. Wis. 1996) ("The appropriate response is an "answer" which responds to each allegation contained in the petition. . . ."). The case which most clearly supports petitioner's argument is a February 3, 1999 unpublished order in Mayfield v. Calderon, SA CV 97-3742 AHS (C.D. Cal.). (Dkt. No. 218, ex. 1.) In Mayfield, Judge Stotler held that Rule 5 required the respondent to "admit or deny the underlying factual allegations of each claim."
In opposing the motion, respondent relies primarily on Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995), and for good reason. The Court of Appeals in Williams made clear that an answer need not provide a "fact-by-fact" response to the petition.
Williams challenges the adequacy of respondent Calderon's answer to his habeas petition, contending that because that answer failed to comply with Rule 5 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, the answer should be stricken and this case returned to the district court for the ...