WILLIAMS v. MCNEIL

Filing 11

ORDER re 2 Petition for Writ of Habeas Corpus filed by RONALD LEE WILLIAMS 1. Clerk to remove exhibits D,E, and F (pages 37-112) from the petition and service copies thereof and return to Petitioner. 2. Clerk to furnish c opies of the petition with copy of this order to Respondent and Atty General of the State of FL. 3. Respondent shall have SIXTY (60) DAYS from docketing date of this order to respond as directed. Internal deadline for referral to judge if response not filed earlier: 11/2/2008. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on September 3, 2008.(cc: Williams w/exhibits) (cc: McNeil R/R 7006 2760 0002 9488 6078; McCollum R/R 7006 2760 0002 9488 6085) (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION RONALD WILLIAMS, Petitioner, vs. WALTER A. McNEIL, Respondent. _______________________________/ ORDER Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a voluminous number of exhibits (Doc. 2). The petition is in the proper form, the filing fee has been paid, and the appropriate number of service copies has been provided. Initially, with respect to some of the exhibits attached to the petition, specifically, exhibits D, E, and F, which are copies of state court opinions disposing of Petitioner's post-conviction applications, Petitioner is advised that the submission of these exhibits at this time is unnecessary. As discussed below, Respondent will be required to submit, in conjunction with his answer, those portions of the state court record that he deems relevant. Petitioner will then have the opportunity to file a reply, at which time he may submit additional portions of the state court record that he deems necessary. Upon receipt of the answer and Petitioner's reply, the court will review the file to determine whether expansion of the record is necessary and whether an evidentiary hearing is required. An evidentiary hearing will not be required unless consideration of disputed evidence outside the state court record appears necessary to the court. If it is determined that an evidentiary hearing is not required, the court will make such disposition of the petition as justice requires pursuant to § 2254 Rule 8(a). Therefore, exhibits D, E, and F shall be returned to Petitioner at this time (Doc. 2 at 37­112). Respondent will be required to file an answer so the court may determine whether an Case No. 3:08cv308/LAC/EMT

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evidentiary hearing is required or, if not required, may dispose of the petition as justice requires. See Rules Governing Section 2254 Cases 8(a). The answer shall be filed pursuant to Rule 5 and shall be styled as an answer rather than as a motion to dismiss or for summary judgment, unless evidence outside the state court record is submitted, McBride v. Sharpe, 25 F.3d 962, 970 (11th Cir. 1994), or unless it appears to Respondent that a motion to dismiss based on a procedural defect such as failure to exhaust or the statute of limitations is appropriate. As provided by Rule 5, the answer shall respond to the allegations of the petition, state whether Petitioner has exhausted his state remedies, and attach such portions of the transcripts as Respondent deems relevant. However, if Respondent raises the defense of failure to exhaust as to any claim, he may file an appropriate motion and shall set forth as to each such claim the appropriate manner of raising the claim under Florida law, whether Petitioner has sought such relief, and, if not, what further relief is available for purposes of § 2254(c). Rule 5; 28 U.S.C. § 2254(b) and (c). If further relief is not available in the state courts, the appropriate defense is procedural default, not failure to exhaust, which should be asserted in Respondent's answer, not in a motion to dismiss. If an exhaustion argument is raised by motion, Respondent may await a ruling on that defense before filing an answer on the merits. Alternatively, Respondent may proceed directly to the merits. See § 2254 (b)(2) (the application may be denied on the merits notwithstanding the failure to exhaust state remedies) and § 2254(b)(3) (the exhaustion requirement is not deemed to be waived unless expressly waived by counsel for the state), as amended April 24, 1996. The answer shall be filed within sixty (60) days of the date this order is docketed. Thereafter, Petitioner will be given the opportunity to file a reply. Accordingly, it is ORDERED: 1. 2. 3. The Clerk is directed to remove exhibits D, E, and F (pages 37­112)from the petition The Clerk is directed to furnish copies of the petition with a copy of this order to Respondent shall have SIXTY (60) DAYS from the date this order is entered on the and service copies thereof and return them to Petitioner. Respondent and the Attorney General of the State of Florida. docket in which to file an answer as directed by this order.

Case No: 3:08cv308/LAC/EMT

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DONE AND ORDERED this 3rd day of September 2008. /s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE

Case No: 3:08cv308/LAC/EMT