UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HERBERT A. SMITH, Case No. 1:18-cv-514
Petitioner,
Black, J.
vs. Litkovitz, M.J.
WARDEN, LEBANON ORDER
CORRECTIONAL INSTITUTION,
Respondent.

Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a
pro se petition for a writ of habeas corpus in this Court. (Doc. 5). Prior to the Court’s issuance
of an Order for Answer or any response by respondent, petitioner filed a motion for summary
judgment. (Doc. 3). Petitioner states that he filed the motion “in the hopes that the court[] will
rule in a favorable manner on the writ of Habeas Corpus.” (/d. at PageID 43). Petitioner
advances the same claims in the motion as are presented in his habeas petition, which is currently
pending before the Court.

Petitioner’s motion is duplicative of his habeas corpus petition and an improper
mechanism for seeking federal habeas relief. As one district court noted:

Summary judgment is a procedural device available for prompt and expeditious
disposition of controversy without trial when there is no dispute as to material fact.
Petitioner has filed a petition for writ of habeas corpus. “[T]he writ of habeas
corpus is not a proceeding in the original criminal prosecution but an independent
civil suit.” Riddle v. Dyche, 262 U.S. 333, 335-336 (1923); See, e.g. Keeney v.
Tamayo-Reyes, 504 U.S. 1, 14 (1992) (O’Connor, J., dissenting). Modern habeas
corpus procedure has the same function as an ordinary appeal. Anderson v.
Butler, 886 F.2d 111, 113 (Sth Cir.1989); O'Neal v. McAnnich, 513 U.S. 440, 442,
(1995) (federal court’s function in habeas corpus proceedings is to “review errors
in state criminal trials” (emphasis omitted)). In a habeas proceeding, petitioner
does not proceed to “trial.” Therefore, the motion for summary judgment is
improper. For all practical purposes, summary judgment is equivalent to the
Court’s making a determination on the merits of a habeas petition. As the Court
will rule on the petition for writ of habeas corpus in due course, a motion for
summary judgment in a habeas proceeding serves no purpose.


Miller v. Baker, No. 3:11-cv-612, 2012 WL 3206444, at *1 (D. Nev. Aug. 3, 2012). See also
Tolen v. Dormire, 4:10-cv-2031, 2011 WL 6152833, at *1 (E.D. Mo. Nov. 16, 2011) (Report and
Recommendation) (“Although a party may technically file a motion for summary judgment in a
habeas proceeding, see Rule 12 of Rules Governing § 2254 Cases, the undersigned finds that
Petitioner’s Motion for Summary Judgment is duplicative of the actual habeas corpus petition,
which the undersigned has yet to completely review.”), adopted, 2011 WL 6152351, at *1 (E.D.
Mo. Dec. 12, 2011); Scott v. FCI Fairton, No. 09-4710, 2010 WL 2540456, at *3 (D.N.J. June
16, 2010) (denying a motion for summary judgment in a habeas corpus proceeding as
superfluous); Schweitzer v. United States, No. 3:CV-05-2042, 2006 WL 1149245, at *1, n.4
(M.D. Pa. Apr. 27, 2006) (denying motion for summary judgment without prejudice on the basis
that “it is not a proper procedural mechanism for addressing [the petitioner’s] habeas corpus
claims”). Accordingly, because the motion for summary judgment is duplicative of the habeas
corpus petition currently pending before the Court, petitioner’s motion (Doe. 3) is DENIED.

IT IS SO ORDERED.

Date:_2/1) //9 Zon go thand

Karen L. Litkovitz
United States Magistrate tits