Smith v. Laughlin

Filing 7

ORDER that Respondent answer, in writing, the allegations of the 1 Petition by filing a Response within sixty (60) days after service of this Order. A copy of the Petition and a copy of this Order shall be served upon Respondent by certified mail, return receipt requested. The Clerk is further directed to serve the Office of the Attorney General of the State of Georgia with proper notice of the present case and this Order. Signed by Magistrate Judge R. Stan Baker on 5/23/2017. (ca) (Additional attachment(s) added on 5/23/2017: # 1 Certified Mail Receipt) (ca).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JAMES EDWARD SMITH,
Petitioner,

CIVIL ACTION NO.: 6:17-cv-53

v.
WARDEN VANCE LAUGHLIN,
Respondent.
ORDER
Petitioner, an inmate at Wheeler Correctional Facility in Alamo, Georgia, seeks to file in
forma pauperis an action under 28 U.S.C. § 2254 contesting the legality of his confinement.
Petitioner appears to attack a conviction obtained in the Superior Court of Screven County,
Georgia. Additionally, the Petitioner appears to be indigent; therefore, the Court GRANTS
Petitioner leave to proceed in forma pauperis, subject to objection.
THEREFORE, IT IS HEREBY ORDERED that Respondent answer, in writing, the
allegations of the petition by filing a Response with the Clerk of this Court within sixty (60) days
after service of this Order.

The Response must comply with Rule 5, 28 U.S.C. § 2254.

Specifically, the Response shall include the following:
1) all pleadings (including any and all pretrial, trial, post-conviction, and
appellate filings) filed in Petitioner’s underlying state court case;
2) a statement of what transcripts (of pretrial, trial, sentencing, and postconviction proceedings) are available, when they can be furnished, and what
proceedings have been recorded but not transcribed;
3) portions of any transcript that Respondent considers relevant to Petitioner’s
claims and Respondent’s defenses thereto;
4) a transcript of Petitioner’s state habeas corpus hearings;
5) all decisions of the state habeas courts; and

6) for any proceeding in any appellate court or any post-conviction proceeding
relating to the conviction or sentence: any brief that Petitioner submitted, any
brief the prosecution submitted, and the opinions and dispositive orders of any
court.
Respondent shall ensure that all submitted transcripts are certified. Respondent’s brief of law
shall be no longer than twenty-five (25) typewritten pages double-spaced on letter-sized (8.5” x
11”) paper.

Respondent shall refer to specific pages of the trial transcript in which it is

contended that error did or did not occur. In accordance with Rodriguez v. Fla. Dep’t of Corr.,
748 F.3d 1073 (11th Cir. 2014), Respondent is directed to serve upon Petitioner a copy of all
documents referenced or cited to in his Response.
If Respondent contends that the Court should dismiss the Petition at this stage,
Respondent shall file a Motion to Dismiss the Petition at the time of filing his Response.1
Otherwise, Respondent shall include in his Response to the Petition a statement explaining
why the Petition cannot be adjudicated on a Motion to Dismiss.
Petitioner may file his Reply to Respondent’s Response within fourteen (14) days of
service of the Response.

If Respondent files a Motion to Dismiss, Petitioner must file a

Response to that Motion within fourteen (14) days of being served with Respondent’s Motion.
“Failure to respond shall indicate that there is no opposition to a motion.” Local Rule 7.5.
Therefore, if Petitioner fails to respond to a Motion to Dismiss, the Court will presume that
Petitioner does not oppose Respondent’s Motion. The Court will dismiss Petitioner’s case for
lack of prosecution and failure to follow the Court’s Order if Petitioner fails to respond to a
Motion to Dismiss. Petitioner’s brief of law shall be no longer than twenty-five (25) typewritten

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Respondent need not file a Response and a separate Motion to Dismiss. Rather, Respondent’s
Response to the Petition may take the form of a Motion to Dismiss with a Supporting Brief and Exhibits.
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pages double-spaced on letter-sized (8.5” x 11”) paper. Petitioner shall refer to specific pages of
the trial transcript in which it is contended that error did or did not occur.
No discovery shall be had by either party without leave of court. Rule 6, 28 U.S.C.
§ 2254. Unless and until Petitioner demonstrates to this Court that the state habeas court’s factfinding procedure was not adequate to afford a full and fair evidentiary hearing or that the state
habeas court did not afford the opportunity for a full, fair, and adequate hearing, this Court’s
consideration of Petitioner’s habeas petition will be limited to an examination of the evidence
and other matters presented to the state trial, habeas, and appellate courts.
After review of the Respondent’s and Petitioner’s filings, the Court will determine
whether to grant the writ, deny the writ, or set the matter down for hearing.
Petitioner is cautioned that while this action is pending, Petitioner shall immediately
inform this Court in writing of any change of address. Failure to do so will result in dismissal of
this case.
IT IS FURTHER ORDERED that the Clerk of Court serve a copy of this Order upon the
Petitioner. Additionally, a copy of the Petition and a copy of this Order shall be served upon
Respondent by certified mail, return receipt requested. The Clerk is further directed to serve the
Office of the Attorney General of the State of Georgia with proper notice of the present case and
this Order.
SO ORDERED, this 23rd day of May, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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