Sallie (DEATH PENALTY) v. Humphrey
ORDER GRANTING IN PART AND DENYING IN PART 59 Motion for Reconsideration. Ordered by Judge Marc Thomas Treadwell on 11/18/2011. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WILLIAM CARY SALLIE,
CARL HUMPHREY, Warden,
CIVIL ACTION NO.: 5:11-CV-75 (MTT)
This matter is before the Court on Respondent’s Motion for Reconsideration of
Scheduling Order and Order Withholding Ruling on Respondent’s Motion to Dismiss
Petition for Writ of Habeas Corpus as Untimely. (Doc. 59). As discussed below, the
Court grants Respondent’s motion in part and denies the motion in part.
Respondent requests the Court to “reconsider its decision to withhold ruling on
Respondent’s Motion to Dismiss.” (Doc. 59 at 5). Respondent argues the Court must
determine whether equitable tolling can save Petitioner’s untimely Petition before the
Parties address the merits of Petitioner’s claims. Contrary to Respondent’s assertions,
Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057 (11th Cir. 2011) does not require the
Court to consider only timeliness issues when a respondent moves to dismiss a habeas
petition as untimely or raises a statute of limitations defense in his answer. Moreover,
timeliness is not a jurisdictional prerequisite under the Antiterrorism and Effective Death
Penalty Act. Holland v. Florida, 130 S. Ct. 2549, 2560 (2011). Therefore, the Court
may determine that disposing of this case in some other manner is in the best interest of
judicial economy. See generally, Trussell v. Bowersox, 447 F.3d 588 (8th Cir. 2006).
Accordingly, the Court declines to reconsider its decision to withhold ruling on both the
Respondent’s Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely (Doc. 4)
and Petitioner’s Motion for Order Ruling Habeas Petition Timely Filed or, alternatively,
Granting Evidentiary Hearing. (Doc. 52). Therefore, the Court DENIES this portion of
Alternatively, Respondent requests the Court to limit further pleadings in the case
to an amended petition and Respondent’s answer filed in accordance with Rule 5 of the
Rules Governing Section 2254 Cases (“Rule 5”). The Court GRANTS this portion of
Respondent’s motion. Thus, the Court’s November 1, 2011 Scheduling Order is
modified to eliminate the briefing schedule. The other terms of the November 1, 2011
Scheduling Order remain the same and Petitioner must submit, no later than December 5,
2011, an amended Petition for Writ of Habeas Corpus by a Person in State Custody that
includes every unalleged possible constitutional error or deprivation entitling Petitioner to
federal habeas corpus relief. Thirty days later, Respondent must file an answer that
complies with Rule 5. After review of the amended habeas petition and answer, the
Court will determine whether briefs are necessary.
SO ORDERED, this 18th day of November, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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