UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gerard Joseph Bean

v. Civil No. 07-cv-328-JL

NOT FOR PUBLICATION OR

Northern New Hampshire DISTRIBUTION

Correctional Facility, Warden

 O R D E R

The parties to this § 2254 litigation appear to be unable,

or unwilling, to assist the court in resolving the claims at

bar. In its April 13, 2011 Order following the last summary 1

judgment hearing (document no. 103), the court ordered further

briefing on Claim ## 2 (pending portions), 5 and 6 as identified

in Judge Muirhead’s Report and Recommendation dated February 3,

2010 (document no. 48).

Petitioner Bean was ordered to “file a brief addressing the

pre-arrest and post-arrest statements to the police” implicated

in Claim # 2 (document no. 103). His brief (document no. 116),

provides the court with no helpful factual analysis, applicable

authority, or coherent argumentation, and is exceedingly

difficult to read, follow, and understand.

The court only reluctantly makes this observation, as it 1

holds counsel of record and her office in very high regard.

Case 1:07-cv-00328-JL Document 127 Filed 03/30/12 Page 1 of 6
For his part, the Warden was ordered to file a brief that:

• “shall not include citations to the record, but rather

shall include as exhibits any portion of the record

cited in the brief” (emphasis added);

• “shall identify the applicable standard of review”; and

• “identify all points in the state court where each

claim is addressed.”

(Document no. 103). The Warden’s supplemental motion for summary

judgment and accompanying Memorandum of Law (document no. 112) do

not comply with the order. The brief contains many record

citations (as opposed to exhibits, as ordered), very few

exhibits, and recycles weak, specious, easily refutable arguments

regarding exhaustion and procedural default-based waiver, and the

following explanation or disclaimer:

“The respondent has attempted to locate all the places

where all the issues recognized by this court as

compromising the petition were raised, but because of

the length of some of the documents and their detailed,

yet scattered content, the respondent is not sure each

issue has been exactly located. As a result, the

respondent has, at times, relied on the documents

attached to document no. 46, in an attempt to address

the claims recognized by this Court. The respondent

apologizes to the Court to the extent that this creates

confusion.”

Respondent’s Supplemental Memorandum of Law in Support of Motion

for Summary Judgment (May 12, 2011) (document no. 112). While

the court accepts the apology, it finds itself at a loss to

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address the claims at bar without meaningful assistance from the

parties or counsel.

It is the Warden’s burden as the movant, after all, to

eliminate the existence of any genuine issue of material fact in

order to prevail on a motion for summary judgment. Throwing up

one’s hands in the face of a voluminous, detailed record and the

“scattered” arguments of a pro se petitioner, while

understandable at some level, is of little help to the court in

addressing the claims.

The court cannot act as either party’s lawyer. At the very

least, the other party could legitimately complain, and it would

not be appropriate for a judge to review the sufficiency of legal

arguments it has itself posited. Besides, the court has more

than enough to do considering and deciding the legal matters

properly presented in scores of other cases. In short, the court

cannot assume the role of adviser, advocate, or legal counsel to

any of the parties. See, e.g., Kauthar SDN BHD v. Sternberg, 149

F.3d 659, 668 (7th Cir. 1998) (“it is not the obligation of this

court to research and construct the legal arguments open to

parties, especially when they are represented by counsel.”)

(citation omitted), cert. denied, 525 U.S. 1114 (1999). See also

Higgins v. New Balance Athletic Shoe, Inc., 194 F3d 252, 260 (1st

Cir. 1999) (“The district court is free to disregard arguments

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that are not adequately developed.”). United States v. TorresRosa, 209 F.3d 4, 6 (1st Cir. 2000) (concluding that it is not

the court’s obligation “to do counsel’s homework.”).

Counsel is no doubt busy and anxious to practice in as

efficient a manner as possible, but shifting research, recordcombing, and briefing responsibilities to the court is not a

viable option. As then Judge Scalia observed while sitting on

the Court of Appeals for the District of Columbia,

The premise of our adversarial system is that appellate

courts do not sit as self-directed boards of legal

inquiry and research, but essentially as arbiters of

legal questions presented and argued by the parties

before them. Thus, Rule 28(a)(4) of the Federal Rules

of Appellate Procedure requires that the appellant’s

brief contain “the contentions of the appellant with

respect to the issues presented, and the reasons

therefor, with citations to the authorities, statutes

and parts of the record relied on.” Failure to enforce

this requirement will ultimately deprive us in

substantial measure of that assistance of counsel which

the system assumes - a deficiency that we can perhaps

supply by other means, but not without altering the

character of our institution. . . . [W]here counsel has

made no attempt to address the issue, we will not

remedy the defect, especially where, as here,

“important questions of far-reaching significance” are

involved.

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Circ. 1983) (citations

omitted). The same principles apply with equal force at the

district court level, though it’s doubtful that important

questions of far-reaching significance are involved in this case. 

But, absent informative briefing it is difficult to tell with any

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degree of certainty. Bonnie & Co. Fashions, Inc. v. Bankers

Trust Co., 945 F.Supp. 693, 726 (S.D.N.Y. 1996) (“It is not the

job of this, or any other, court to construct arguments or to

ferret out evidentiary support on behalf of a party.”).

This stated, the court has repeatedly and painstakingly

scrutinized the trial and post trial record in this case, as well

as the parties’ filings in this court. The court can identify no

violation of the petitioner’s constitutional rights under even

the most Rigorous de novo standard of review. Further, any

constitutional violations that could be gleaned from the record

were undoubtedly harmless in light of the overwhelming evidence

against the petitioner. The motion for summary judgment is 2

therefor granted as to the remaining unresolved claims referenced

in the first paragraph of this order. The petition is denied.

All other pending motions are denied as moot. Because Bean 3

has failed to make a substantial showing of the denial of a

constitutional right, the court declines to issue a certificate

of appealability. See 28 U.S.C. § 2253(c)(2); Rule 11, Federal

Rules Governing Habeas Corpus Cases Under Section 2254; First

Document no. 2 112. 

Document nos. 3 106 and 107.

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Cir. LR 22.0. The clerk shall enter judgment accordingly and

close the case.

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: March 30, 2012 

cc: Gerard Joseph Bean, pro se

Elizabeth C. Woodcock, Esq.

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