YAWN v. SECRETARY OF DEPARTMENT OF CORRECTIONS

Filing 4

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by ANTHONY YAWN and directing Clerk to serve 1 Petition for Writ of Habeas Corpus on Respondent and Attorney General for State of Florida via regular first class mail - Answer due by 12/5/2011 and Replies due by 1/5/2012; signed by MAGISTRATE JUDGE GARY R JONES on 10/4/11. (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
ANTHONY YAWN,
Petitioner,
v.

CASE NO. 1:11-CV-158-MP-GRJ

SECRETARY OF DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
This matter is before the Court on Doc. 1, a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, and Doc. 2, Petitioner’s motion for leave to proceed as a
pauper. The Court finds that leave to proceed as a pauper should be granted.
The Respondent shall file a response to the Petition as directed in this order.
The response shall be styled as an answer unless a motion to dismiss the petition, in
whole or in part, due to a failure to exhaust state remedies, a procedural bar, nonretroactivity, or a statute of limitations is appropriate, in which case such ground shall
be asserted by motion. See § 2254 Rule 4 and Advisory Committee Notes (Court may
authorize Respondent to address procedural bars by way of a motion to dismiss, “which
may avoid burdening the Respondent with the necessity of filing an answer on the
substantive merits of the petition.”); § 2254 Rule 5(b).1 If a motion to dismiss some or

1

The face of the petition reflects that it may be time-barred. Accordingly, the
Court is affording Respondent a shorter response period in order to facilitate
expeditious resolution by motion, if Respondent concludes that a motion to dismiss is
warranted.

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all of the claims on a procedural ground is filed, Respondent need not also file an
answer as to the merits of those claims only until the Court rules on the motion
asserting the procedural ground. See id. Respondent may respond to the merits of the
Petition without waiving the exhaustion requirement. See § 2254(b)(2) and §
2254(b)(3). Petitioner may file a reply to any of Respondent's arguments, including a
motion to dismiss, within the time set by this order, but is not required to do so. § 2254
Rule 5(e).
The Court will review the record after the answer (or other motion) and
Petitioner’s reply (if any) are filed. If it does not appear that a hearing or additional
argument is warranted, then the undersigned will make appropriate disposition of the
motion or petition. If an evidentiary hearing is warranted and permitted, counsel will be
appointed. § 2254 Rule 8. Accordingly, it is
ORDERED AND ADJUDGED:
1. The motion for leave to proceed as a pauper, Doc. 2, is GRANTED.
2. The Clerk shall serve a copy of the petition, Doc. 1, along with this order, on
Respondent and the Attorney General of the State of Florida via regular firstclass mail.
3. Respondent shall file an answer or other pleading on or before December 5,
2011. If voluminous exhibits or records (such as transcripts) are submitted in
support of the answer, paper copies shall be provided to the court.
3. Petitioner shall have until January 5, 2012, to file a reply, if desired.
DONE AND ORDERED this 4th day of October 2011.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
Case No: 1:11-cv-158-MP-GRJ