SMITH v. STATE OF FLORIDA et al

Filing 5

ORDER re 4 Amended Complaint filed by TED SMITH: Clerk shall serve copy of amended complaint on Respondents and Florida Attorney General via regular first-class mail. (Internal deadline for referral to judge if response not filed earlier: 2/2/2012)., Reply by Petitioner due by 3/2/2012, if desired.). Signed by MAGISTRATE JUDGE GARY R JONES on 1/3/2012. (Amended Complaint mailed to Respondents and Florida Atty General.) (jws)

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

CASE NO. 1:11-cv-265-MP-GRJ

WILLIAM S. BAXTER,
NFETC Administrator,
and FRANK E. SHEFFIELD,
Circuit Judge, Gadsden County,
Respondents.
_____________________________/
ORDER
This matter is before the Court on Doc. 4, Petitioner’s first amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee
and, therefore, the Respondents will now be directed to file a response to the Petition.
The Respondents 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). If a motion to dismiss some or all
of the claims on a procedural ground is filed, Respondents 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. Respondents may respond to the merits of the Petition

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without waiving the exhaustion requirement. See § 2254(b)(2) and § 2254(b)(3).
Petitioner may file a reply to any of the Respondents’ 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 Clerk shall serve a copy of the amended petition, Doc. 4, along with this
order, on Respondents and the Attorney General of the State of Florida via
regular first-class mail.
2. Respondents shall file an answer or other pleading on or before February 2,
2012. 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 March 2, 2012, to file a reply, if desired.
DONE AND ORDERED this 3rd day of January 2012.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-265-MP-GRJ