Davis v. Cross
Filing
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ORDER denying 37 Motion for Reconsideration. Signed by Magistrate Judge Clifford J. Proud on 10/21/2015. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY T. DAVIS,
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Petitioner,
vs.
JAMES N. CROSS, JR.,
Respondent.
Case No. 15-cv-169-CJP
ORDER
PROUD, Magistrate Judge:
Before the Court is petitioner’s Motion to Reconsider Order Granting
Respondent [Leave to File] Supplemental Response. (Doc. 37).
On October 5, 2015, the Court granted petitioner’s request to expedite
consideration of his petition filed under 28 U.S.C. §2241. The Court directed
respondent to file a supplemental response by October 19, 2015. See, Doc. 29.
Respondent complied on October 14, 2015, five days early. See, Doc. 35. The
Court then granted petitioner until October 28, 2015, in which to file a reply. See,
Doc. 36.
In his original response, respondent erroneously stated that petitioner had
not filed a motion under 28 U.S.C. §2255. He has now abandoned that erroneous
statement. His supplemental response repeats the same substantive position that
he took in his original response, i.e., that Rosemond v. United States, 134 S. Ct.
1240 (2014), does not entitle Davis to habeas relief because Davis knew that his
co-defendant had a firearm in sufficient time to have abandoned the bank
robbery.
Contrary to petitioner’s protestations, directing respondent to file a
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supplemental response did not violate Fed.R.Civ.P. 12(b), Rule 5 of the Rules
Governing Section 2254 Cases, or binding circuit precedent. The supplemental
response does not raise a “defense” within the meaning of Rule 12, and Rule 5 in
no way prohibits amending or supplementing the original response. Further,
Fed.R.Civ.P. 15(a)(2) requires the Court to freely grant leave to amend pleadings
“when justice so requires.”
The filing of the supplemental response has not prejudiced Davis and has
not delayed resolution of his case. The Court is prepared to rule on the petition
upon the filing of petitioner’s reply.
Petitioner’s reply is due by October 28, 2015.
Petitioner’s Motion to Reconsider Order Granting Respondent [Leave to
File] Supplemental Response (Doc. 37) is DENIED.
IT IS SO ORDERED.
DATE: October 21, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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