Russell v. Norman

Filing 27

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that Petitioner's Motion to Amend Petition (Doc. No. 6 ) is DENIED. IT IS FURTHER ORDERED that Petitioner's Motion for Extension of Time to File a Response to the Respondent's Reply to the Pe tition (Doc. No. 24 ) is GRANTED. Petitioner shall file a Traverse no later than December 21, 2012 addressing only the seven claims included in the original Petition and contained in the Response to Order to Show Cause. The Traverse shall not excee d 30 pages. IT IS FURTHER ORDERED that Petitioner's Motions for Extension of Time (Doc. Nos. 16 20 and 23 ) and Motion for Clarification (Doc. No. 22 ) are DENIED as MOOT. IT IS FINALLY ORDERED that Petitioner's Motion to File Reply Out of Time (Doc. No. 25 ) is DENIED as MOOT. Signed by Magistrate Judge Terry I. Adelman on 11/19/2012. (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENNIS RUSSELL,

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Petitioner,
v.
JEFF NORMAN,
Respondent.

No. 4:11CV2016 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion to Amend Petition (Doc. No. 17),
motions for extension of time to file a reply to Respondent’s Response to Order to Show Cause (Doc.
Nos. 16, 20, 23 and 24), Motion for Clarification (Doc. No. 22), and Motion to File Reply to
Respondent’s Answer to Petition Out of Time (Doc. No. 25). The parties consented to the
jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
On November 16, 2011, Petitioner Dennis Russell filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254, asserting seven grounds for habeas relief. Respondent filed his Response
to Show Cause Order on January 19, 2012. Subsequently, Petitioner filed a Motion to Amend the
Petition, seeking to add 11 additional claims. All but one of these grounds pertain to ineffective
assistance of post-conviction counsel for failing to raise specific claims of ineffective assistance of trial
counsel during collateral review. (Proposed Am. Pet. 1-24, ECF No. 17-1) The other ground
contends that post-conviction counsel failed to raise ineffective assistance of appellate counsel during
collateral review. (Id. at 24-25)
Petitioner argues that Martinez v. Ryan,

U.S.

, 132 S. Ct. 1309 (2012) allows him to

file additional claims involving ineffective assistance of post-conviction counsel.

However,

Respondent correctly notes that Martinez merely held that when state law requires ineffective
assistance of trial counsel claims to be raised in an initial-review collateral proceeding, “a procedural
default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance
at trial, if, in the initial-review collateral proceeding, . . . counsel in that proceeding was ineffective.”
Id. at 1320. Thus, “[i]nadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at
1315. The Martinez decision does not allow a petitioner to add new claims of ineffective assistance
of counsel to the federal habeas petition. Therefore, Petitioner’s Motion to Amend is denied.
However, Petitioner has also filed several motions for extension of time to file a response to
Respondent’s Response to Order to Show Cause and most recently filed a motion to file a reply out
of time, with an accompanying 126-page Traverse. The undersigned will allow additional time for
Petitioner to file a response, which may include arguments of ineffective assistance of counsel in an
initial-review collateral proceeding to establish cause for alleged procedural default. Martinez, 132
S. Ct. at 1315. However, the Court will not allow Petitioner to file his suggested Traverse, which
far exceeds acceptable page limits and addresses claims not before the Court. Any response must be
no longer than 30 pages in length. For clarification, the Petition now pending before this Court is
Document Number 1, containing seven claims, and the Prayer for Relief docketed as Document
Number 9.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion to Amend Petition (Doc. No. 16) is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Extension of Time to File a
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Response to the Respondent’s Reply to the Petition (Doc. No. 24) is GRANTED. Petitioner shall
file a Traverse no later than December 21, 2012 addressing only the seven claims included in the
original Petition and contained in the Response to Order to Show Cause. The Traverse shall not
exceed 30 pages.
IT IS FURTHER ORDERED that Petitioner’s Motions for Extension of Time (Doc. Nos.
16, 20, and 23) and Motion for Clarification (Doc. No. 22) are DENIED as MOOT.
IT IS FINALLY ORDERED that Petitioner’s Motion to File Reply Out of Time (Doc. No.
25) is DENIED as MOOT.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of November, 2012.

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