Sears v. Williams

Filing 10

ORDERED that the Clerk of Court is directed to forward to the U.S. Marshal copies of this Order and petition for service upon the respondent. Respondent, within thirty days after service of this Order, is to file a response and show why relief Sears seeks should not be granted. Signed by Magistrate Judge G. R. Smith on 10/6/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ROBERT ALLAN SEARS,
Movant,
Case No. CV415-111

I,
,

WARDEN STANLEY WILLIAMS,
Respondent.
ORDER
"Robert Allen Sears was tried by a Chatham County jury and
convicted of the murder of Isaiah Lovett, aggravated assault, and
possession of a knife during the commission of a felony." Sears v. State,
292 Ga. 64, 64 (2012). Following affirmance of his conviction, Sears says
he filed for state habeas relief, doc. 3-1 at 4-5, but does not say when,
only that it was denied, with the denial affirmed on January or June 12,
2015 (his writing is illegible). Id. at 5. He now petitions this Court for
28 U.S.C. § 2254 relief, doc. 3-1, and moves for leave to proceed in forma

pauperis (IFP). Doc. 2. The Court granted him IFP but, upon
'preliminary review under 28 U.S.C. § 2254 Rule 4, issued a Report and

Recommendation (R&R) advising dismissal because Sears simply
"laundry listed" his claims. Doc. 4. In his Fed. R. Civ. P. 72(b)(2)
Objection to that R&R, Sears added to his claims.

See docs 7 & 8. In

response, the district judge re-referred the case "to assess the habeas
petition in light of the allegations and arguments contained in
Petitioner's objections." Doc. 9 at 1-2.
The R&R also raised but did not resolve a timeliness issue.' Doc. 4
at 2. The Clerk is hereby DIRECTED to forward to the Marshal
sufficient copies of this Order and the petition for service upon the
respondent by certified mail and upon the Attorney General of the State
of Georgia, directed to the attention of Deputy Attorney General Paula
Smith, by regular mail. The Marshal's return shall constitute prima
facie evidence of service of process.

1

Sears used an outdated § 2254 form, which failed to ask him the date on which he
filed his state habeas petition. Doc. 3-1 at 4-5. Georgia's Attorney General should
ensure that all Georgia state prisons and jails stock the "AO-241 (Rev 1/15)" version,
which (in question 11) asks "Date of filing (if you know)." That's a key point of data
because courts can sua sponte raise the State's untimeliness defense, see Wood v.
Milyard, - U.S. -, 132 S.Ct. 1826, 1834 (2012); Day v. McDonough, 547 U.S. 198,
209 (2006); Newson v. Attorney General of Kansas, 568 F. App'x 562, 563 (10th Cir.
2014), but can't efficiently do so absent that information. Use of the latest § 2254
form may well spare the expense of the State having to appear just to furnish that
missing information. See Allen v. Tatum, 2014 WL 4660837 at * 1 n. 1 (S.D. Ga.
Sept. 4, 2014) (recounting similar problem, ordering State's response).
2

The respondent is therefore ORDERED, within thirty days after
service of this Order, to file a response and show why the relief Sears
seeks should not be granted. The answer shall conform to the
requirements of Rule 5 of the Rules Governing § 2254 Cases in the
United States District Court. Respondent shall furnish with the answer
a copy of any trial transcripts, the transcripts of any state habeas corpus
proceedings and orders of the state court denying the writ, and, if the
petition appealed from the judgment of conviction or from an adverse
judgment or order in a post-conviction proceeding, a copy of all appellate
briefs and of the opinion of the appellate court, if any. However, the
State may file a limited response (and record) if it in good faith believes
that it has good grounds to move for dismissal on timeliness grounds.
See supra n. 1. It will then fully comply if the Court denies that motion.

SO ORDERED, this

6

day of October, 2015.

UNITED S ATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA