The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
District Judge Susan J. Dlott
This case is before the Court on Petitioner's Motion (Doc. No. 35) to Strike Respondent's Sur-reply (Doc. No. 34) which Respondent opposes (Doc. No. 37). In the alternative, Petitioner asks the Court to treat his Motion as a sur-sur-reply.
With respect to pleadings, the Rules Governing § 2254 Cases (the "Habeas Rules") provide detailed instructions as to the petition and answer. Under Rule 2(c), the petition must
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten;
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. §2242.
Under Rule 2(d) "The petition must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. . . .
Rule 5 requires that 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." Habeas Rule 5(b). It must also "indicate what transcripts (of pre-trial, trial, sentencing, or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed." Id.
In contrast to these fairly detailed prescriptions, Habeas Rule 5(d) provides only that "[t]he petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the judge."
The Amended Petition in this case (Doc. No. 22) pleads nine grounds for relief*fn1 in 87 pages, but without citing any case law. Respondent's Return of Writ*fn2 (Doc. No. 26) is 75 pages long and does rely on case citations. Petitioner's Traverse*fn3 (Doc. No. 30) is 174 pages long. It is organized more in the form of a brief than of a pleading, beginning with lengthy statement of facts, a procedural history, a summary of generally applicable law, a summary of Petitioner's argument, and then an extended argument on each Ground for Relief with citations of assertedly applicable law.
Faced with this lengthy Traverse, Respondent sought leave of court to file a sur-reply (Motion, Doc. No. 31) without specifying what the content of such a document would be. The Habeas Rules do not provide for a sur-reply and in fact do not label any papers as "pleadings."*fn4 In allowing the sur-reply, the Court limited Respondent to ...