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Gerard Joseph Bean v. Northern New Hampshire Correctional Facility

March 30, 2012

GERARD JOSEPH BEAN
v.
NORTHERN NEW HAMPSHIRE CORRECTIONAL FACILITY, WARDEN



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

NOT FOR PUBLICATION OR DISTRIBUTION

ORDER

The parties to this § 2254 litigation appear to be unable, or unwilling, to assist the court in resolving the claims at bar.*fn1 In its April 13, 2011 Order following the last summary 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.

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 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 that are not adequately developed."). United States v. Torres-Rosa, 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, record-combing, and briefing responsibilities to the court is not a viable option. As then Judge Scalia observed while ...


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