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Respondent served Petitioner with the responsive pleading on June 29, 2009. 

The Court received a notice regarding Petitioner’s change of address approximately

three weeks later on July 22, 2009. [Dkt. #7]. 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARL NEAL, #185182,

Petitioner,

Civil No: 2:08-13935

Honorable Victoria A. Roberts

Magistrate Judge R. Steven Whalen

v.

WILLLIE O. SMITH,

Respondent.

_________________________________/

ORDER DENYING PETITIONER’S 

MOTION TO STRIKE AS MOOT

This is a habeas case under 28 U.S.C. § 2254. Petitioner Carl Neal (Petitioner) is

incarcerated pursuant to a state court conviction, following a jury trial, for two counts of

second-degree murder, and one count of first-degree criminal sexual conduct. Petitioner

has filed a pro se petition for writ of habeas corpus challenging this conviction. Before the

Court is Petitioner’s motion “To Strike Respondent’s Objection.” For the reasons that

follow, the motion will be denied as moot.

Petitioner claims that Respondent’s answer to the habeas petition should be stricken

because he did not receive a copy of the pleading. Respondent timely filed its answer with

the Court, and attached to it was a proof of service indicating that Petitioner had been

served at Ionia Maximum Correctional Facility in Ionia, Michigan. [Dkt. #6]. However, Ionia

Maximum Correctional Facility was Petitioner’s previous address.1

 Respondent

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Petitioner has since moved from Straits Correctional Facility to where he is

presently confined, Marquette Branch Prison in Marquette, Michigan. 

2

subsequently corrected its service error by filing a new certificate of service with the Court

and re-served Petitioner at the proper address, Straits Correctional Facility in Kincheloe,

Michigan.2

 [Dkt. #9]. It is apparent that Petitioner has received Respondent’s answer to

the habeas petition because Petitioner has filed a reply brief to Respondent’s answer,

which consists of direct references to the contents of the responsive pleading. 

Since the basis for Petitioner’s motion to strike is a justifiable error due to the close

proximity between when Petitioner was transferred to Straits Correctional Facility and when

the answer was served, the Court does not find that Respondent acted improperly when

it originally served Petitioner. Moreover, since Respondent filed its answer in a timely

manner, and Petitioner has had the opportunity to review and respond to Respondent’s

answer, Petitioner has not suffered any prejudice. Therefore, striking Respondent’s answer

is not warranted.

Accordingly,

IT IS ORDERED that Petitioner’s motion “To Strike Respondent’s Objection” [Dkt.

# 8] is DENIED AS MOOT.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: October 19, 2009

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The undersigned certifies that a copy of this

document was served on the attorneys of

record and Carl Neal by electronic means or

U.S. Mail on October 19, 2009.

s/Linda Vertriest 

Deputy Clerk

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