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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

AARON WADE SMITH, #1703605

VS. 

DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:23cv1114

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pro se Petitioner Aaron Wade Smith filed a petition for writ of habeas corpus pursuant to 

28 U.S.C. § 2254. The petition was referred to the undersigned United States Magistrate Judge for 

findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant 

to 28 U.S.C. § 636, and the Amended Order for the Adoption of Local Rules for the Assignment 

of Duties to the United States Magistrate Judge.

MOTION FOR SUMMARY JUDGMENT

On April 29, 2024, Petitioner filed a motion for summary judgment. (Dkt. #17). A motion 

for summary judgment, however, is not a proper method of adjudicating a § 2254 petition. See 

Browder v. Dir., Ill. Dep’t of Corr., 434 U.S. 257, 269 n.14 (1978); Gordon v. Dir., TDCJ-CID, 

No. 4:17CV786, 2018 WL 3060533, at *1 (E.D. Tex. Apr. 25, 2018), report and recommendation 

adopted, No. 4:17CV786, 2018 WL 3046540 (E.D. Tex. June 19, 2018); Crow v. Dir., TDCJ-CID, 

No. 4:16CV545, 2018 WL 2144503, at *1 (E.D. Tex. Mar. 22, 2018), report and recommendation 

adopted, No. 4:16-CV-545, 2018 WL 2129107 (E.D. Tex. May 7, 2018); see also Ziolkowski v. 

Dir., TDCJ-CID, No. 5:17-CV-50, 2019 WL 4580425, at *1 (E.D. Tex. May 13, 2019) (“A motion 

for summary judgment is a highly disfavored, if not improper, method of adjudicating a petition 

for writ of habeas corpus.”), report and recommendation adopted, No. 517CV00050RWSCMC, 

2019 WL 4573680 (E.D. Tex. Sept. 20, 2019); United States v. Hurley, No. 3:01-CR-0356-R, 2005 

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WL 1473828, at *2, n.5 (N.D. Tex. June 22, 2005) (a motion for summary judgment is not proper 

method for adjudicating a motion pursuant to U.S.C. § 2255), report and recommendation 

adopted, No. 3:01-CR-0356-R, 2005 WL 1614017 (N.D. Tex. July 8, 2005). The Rules Governing 

Section 2254 Cases in the United States District Courts do not contemplate such a motion. 

Although Rule 12 permits a court to apply the Federal Rules of Civil Procedure when appropriate, 

a dispositive motion, such as the instant motion, is not appropriate or necessary in the habeas 

context. This is especially true where the motion essentially seeks the same relief as that sought in 

the underlying petition for writ of habeas corpus. 

Furthermore, Petitioner is basically asking the Court to enter a default judgment because 

of Respondent’s alleged failure to file a timely answer to the petition for writ of habeas corpus. A 

default judgment is not a proper remedy when a state fails to file a response or present an 

affirmative defense against raised issues. Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th Cir. 

1985); Hale v. Lockhart, 903 F.2d 545, 547 (8th Cir. 1990); United States ex rel. Mattox v. Scott, 

507 F.2d 919, 924 (7th Cir. 1974). A default judgment is inappropriate even when a state

inexcusably disregards a district court’s orders to respond to a petition. Bermudez v. Reid, 733 F.2d 

18 (2d Cir. 1984), cert. denied, 469 U.S. 874 (1984). To hold otherwise would improperly place 

the burden of default on the community at large. Scott, 507 F.2d at 924. A default judgment is not 

available under these circumstances. 

Moreover, contrary to Petitioner’s allegations, Respondent has not failed to timely file a 

response to the habeas petition. On February 29, 2024, the show cause order (Dkt. #12) issued, 

giving Respondent sixty days to file his response. On April 29, 2024, Respondent filed a motion 

for extension of time in which to file his response. (Dkt. #16). The Court granted Respondent’s 

motion and ordered Respondent to file his response no later than May 29, 2024. (Dkt. #18).

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Accordingly, even if a default judgment were a proper remedy, the Court’s deadline for 

Respondent to file a response to the petition has not yet expired.

For the foregoing reasons, the Court should deny the motion (Dkt. #17).

RECOMMENDATION

It is accordingly recommended that the motion for summary judgment (Dkt. #17) be 

DENIED without prejudice.

Within fourteen (14) days after service of the magistrate judge’s report, any party must

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and specify the place 

in the magistrate judge’s report and recommendation where the disputed determination is found. 

An objection that merely incorporates by reference or refers to the briefing before the magistrate 

judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected

to factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

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