O'Kelley v. Warden

Filing 57

ORDER granting 55 Second Motion for Scheduling Order ; granting 10 Motion to Appoint Counsel ; granting 22 Motion for Scheduling ; granting 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge William T. Moore, Jr on 11/16/15. (bcw)

FILED
U.S. DISTRICT COURT
.
AlAkINN CIV.

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEOR443y 16 PM 12:01
SAVANNAH DIVISION

)

DORIAN FRANK 0' KELLY,

OTS1

Petitioner,
V

CASE NO. CV415-104

.

BRUCE CHATMAN, Warden, Georgia
Diagnostic and Classification
Center,
Respondent.

ORDER
Before the Court is Petitioner's Notion for Leave to
Proceed in forma pauperis (Doc. 2) and Notion to Appoint Counsel
(Doc. 10) . Petitioner filed this habeas petition pursuant to 28
U.S.C. § 2254 to challenge his convictions and capital sentence.
Because Petitioner appears to be indigent (Doc. 2 at 6), the
Court conditionally GRANTS Petitioner leave to proceed in forma
pauperis, subject to Respondent filing any objection. After
careful consideration, Petitioner's motion for appointment of
counsel is GRANTED.

The Court appoints Brian S. Kammer and Lynn

M. Pearson of the Georgia Resource Center in Atlanta, Georgia to
represent Petitioner.
Also before the Court is Respondent's Notion for Scheduling
Order (Doc. 22) and Renewed Notion for Scheduling Order (Doc.
55), to which Petitioner has filed responses (Doc. 47; Doc. 56)

Respondent requests that the Court enter an order providing for
a single brief from both parties encompassing any argument
relating to discovery, evidentiary hearings, procedural default,
cause and prejudice, and the merits of the habeas claim. (Doc.
22 at 2.) Petitioner argues that such an omnibus briefing would
be inappropriate and that Respondent should file the initial
brief regarding any issues of procedural default.' (Doc. 47 at
2.) Both parties have submitted proposed orders.
After careful consideration of both proposals, the Court
agrees with the Petitioner that the filing of a single brief on
all issues involved in this case would both cause confusion and
be inappropriate given the complexity of capital habeas cases in
federal court. However, the Court also concludes that Petitioner
will file the initial brief regarding the issues of procedural
default because he will have the final opportunity to respond to
any unforeseen arguments subsequently raised by the Respondent
in his reply. Accordingly, the Court

ENTERS

the following

scheduling order.
Petitioner shall have

ninety days

from the date of this

order to file any requests for discovery. Within

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thirty days of

Petitioner also requested that this Court delay entering a
scheduling order on the basis that Petitioner's state habeas
proceeding was still pending before the United States Supreme
Court. (Doc. 56 at 2.) However, the petition was denied on
November 2, 2015. O'Kelly v. Chatman, 577 U.S. - (2015) (No.
15-5837)
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U

Petitioner's filing his request for discovery, Respondent shall
file his response. Petitioner will then have ten days after the
filing of Respondent's response in which to file a reply. If the
Court permits discovery, Petitioner will have

120

days

after

service of the Court's discovery order to complete discovery.
Petitioner shall have
discovery or

thirty

days

thirty

days

from the close of

after service of the Court's order

denying discovery to prepare and file a motion for a federal
evidentiary hearing. Respondent shall have

thirty days after the

filing of any motion for a federal evidentiary hearing to file
his response. Petitioner shall then have fifteen days after the
filing of any response by Respondent to file a reply.
Once the Court has either heard evidence at an evidentiary
hearing or denied any motion by Petitioner for an evidentiary
hearing, Petitioner shall have

forty-five days to file a brief

on the issues of procedural default, cause and prejudice, and
fundamental miscarriage of justice. Respondent shall have thirty
days

after the filing of Petitioner's brief to also brief the

issues of procedural default, cause and prejudice, and
fundamental miscarriage of justice. Petitioner shall have
fifteen days in which to file a reply.

After the Court enters an order concerning procedural
default and what issues it will review on the merits, Petitioner
shall have

forty-five

days

to file a final brief on any

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remaining claims. Respondent shall have

thirty days

after

service of Petitioner's brief to file a response. Petitioner
shall have

fifteen days

after service of the response to file

any reply.
This scheduling order may be amended by consent of both
parties, but only with the approval of the Court. To the extent
not agreed to by the parties, either party may seek leave to
amend the schedule for good cause. The Court is mindful of the
importance of capital habeas proceedings, but has carefully
considered its scheduling order and the assigned deadlines. It
has been the Court's experience that in similar proceedings the
parties often disregard the scheduling order and seek multiple
extensions. As a result, the Court is putting the parties on
notice that it is unlikely to grant extensions absent a showing
of extraordinary circumstances.
SO ORDERED this /day of November 2015.

WILLIAM T. MOORE, JR./
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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