CROMARTIE (DEATH PENALTY) v. GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON

Filing 12

ORDER: The Court treats Respondent's motion to vacate as a motion 10 requesting the Court to consider the merits of his motion to dismiss before requiring compliance with the Court's March 24, 2014 Order. The Court GRANTS this request. Until further order from the Court, Respondent is not required to file an answer or file the records required by Rule 5. Petitioner is ORDERED to respond to Respondents motion to dismiss by May 2, 2014. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/2/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RAY JEFFERSON CROMARTIE,
Petitioner,
VS.
WARDEN, GEORGIA DIAGNOSTIC
AND CLASSIFICTION PRISON,
Respondent.
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CIVIL ACTION NO. 7:14-CV-39 (MTT)

ORDER
Pending before the Court are Respondent’s Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely and Motion to Vacate Show Cause Order. (Docs. 9-10).
On March 20, 2014, Petitioner, Ray Jefferson Cromartie, filed a petition for writ of
habeas corpus in this Court along with a motion for appointment of counsel and a motion
to proceed in forma pauperis. (Docs. 1-3). Because it did not “plainly appear[] from the
face of the petition” that it could be summarily dismissed, the Court ordered Respondent
to file an answer that, inter alia, raised any defenses, including the statute of limitations.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
(“Rule 4”); Rule 5 of the Rules Governing Section 2254 Cases in the United States District
Courts (“Rule 5”); (Doc. 7).
Instead of filing an Answer, Respondent has filed a pre-answer motion to dismiss
the petition as untimely. (Doc. 9). Respondent requests the Court to vacate its March
24, 2014 Order because
[u]nder § 2254(d)(2), federal habeas petitions are routinely held to be
time-barred without ruling on the merits of the federal habeas petition…..

Consequently, Respondent respectfully requests that this Court vacate its
premature entry of a show cause order until a ruling has issued on
Respondent’s motion to dismiss Petitioner’s petition for writ of habeas
corpus as untimely.
(Doc. 10 at 2).
Procedurally, Respondent’s motion mostly gets it wrong. Under Rule 4 and Rule
5, the Court’s March 24, 2014 Order requiring Respondent to answer the habeas petition
was not a “show cause order,” nor was it “premature.” (Doc. 10 at 2). While the Court
has discretion to allow Respondent to file a motion to dismiss in lieu of an answer, there is
no requirement that the Court do so, and there certainly is no requirement that the Court
somehow divine that a Respondent wants to file a motion.1 The Advisory Committee
Notes to Rule 5 (2004 Amendment) provide as follows:
Revised Rule 5(a), which provides that the respondent is not required to file
an answer to the petition, unless a judge so orders, is taken from current
rule 3(b). The revised rule does not address the practice in some districts,
where the respondent files a pre-answer motion to dismiss the petition.
But revised Rule 4 permits that practice and reflects the view that if the court
does not dismiss the petition, it may require (or permit) the respondent to file
a motion.
The Court realizes that Respondent would like to avoid the necessity of filing an
answer on the substantive merits of the petition and filing the voluminous records
required by Rule 5. The Court also recognizes that if the petition is time-barred, such
responses and records will not be necessary.
Therefore, the Court treats Respondent’s motion to vacate as a motion requesting
the Court to consider the merits of his motion to dismiss before requiring compliance with
the Court’s March 24, 2014 Order. The Court GRANTS this request. Until further order

1

This is true even though the Court had detected the potential problem raised by the Respondent’s motion.
Again, it is not for the Court to anticipate a Respondent’s strategy, particularly here where the Petitioner has
raised an actual innocence claim.

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from the Court, Respondent is not required to file an answer or file the records required by
Rule 5.
Petitioner is ORDERED to respond to Respondent’s motion to dismiss by May 2,
2014.
SO ORDERED, this 2nd day of April, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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