Sayles v. Warden, London Correctional Institution

Filing 4

ORDER denying as MOOT 2 Motion for Permission to File Petition and denying as MOOT 3 Motion for Leave to Proceed in forma pauperis. Respondent shall, within sixty (60) days of the date of this Order, file a return of writ responding to the allegations of the petition. Signed by Magistrate Judge J. Gregory Wehrman on 8/29/11. (mtw1) (Additional attachment(s) added on 8/30/2011: # 1 Certified Mail Receipt) (mtw1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TONY SAYLES,
Petitioner
vs

Case No. 1:11-cv524

Dlott, J.
Wehrman, M.J.

WARDEN, LONDON
CORRECTIONAL INSTITUTION,
Respondent.
ORDER
Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with
this Court upon payment of the $5.00 filing fee. Petitioner also has filed a motion requesting
permission to file the petition (Doc. 2), as well as a motion for leave to proceed in forma
pauperis (Doc. 3). Both motions (Docs. 2, 3) are DENIED as moot, because the action was
initiated and the petition was filed upon payment of the requisite filing fee. No further Order is
required to commence this proceeding.
For good cause appearing, it is ORDERED that pursuant to Rules 4 and 5 of the Rules
Governing § 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, respondent
shall, within sixty (60) days of the date of this Order, file a return of writ responding to the
allegations of the petition. The return of writ should include the following:
1.

Certify the true cause of petitioner’s detention.

2.

Allege specifically whether or not petitioner has previously filed a petition for

habeas corpus relief in federal court, giving the names of the courts in which petitioner has
sought release, together with any citations to such prior action. Indicate whether or not the
instant petition is successive pursuant to 28 U.S.C. § 2244(b).

3.

Allege as to each ground raised by petitioner whether he has exhausted his state

remedies, including any post-conviction remedies, as well as his rights of appeal both from the
judgment of conviction and from any adverse judgment or order in any post-conviction
proceeding.
4.

Allege whether petitioner’s claims are barred by the one-year statute of

limitations established in 28 U.S.C. § 2244(d).
5.

Allege, pursuant to Stone v. Powell, 428 U.S. 465 (1976), whether petitioner has

been previously afforded in the courts of Ohio an opportunity for full and fair litigation of any of
his claims now brought by way of habeas corpus.
6.

Allege, pursuant to Engle v. Isaac, 456 U.S. 107 (1982), whether any of

petitioner’s claims are barred by a state law procedural default.
7.

Show cause -- supported by a detailed answer to petitioner’s allegations, and by

records, transcripts, affidavits, and other documentary evidence -- why a writ of habeas corpus
should not issue.
8.

If petitioner has alleged that his conviction was against the weight of the

evidence, cite those pages of the trial transcript upon which respondent will rely to establish that
there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable
doubt.
9.

Indicate what transcripts of pretrial, trial, sentencing, and post-conviction

proceedings are available, when they can be furnished, and what proceedings have been recorded
but not transcribed.
10.

Attach such portions of the transcripts as respondent deems relevant.

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11.

Allege whether or not a hearing is necessary and whether or not it is permitted

under the criteria of Townsend v. Sain, 372 U.S. 293, 313 (1963) as amended by 28 U.S.C.
§ 2254(e)(2).
It is further ORDERED that the Clerk of this Court serve a copy of this Order and the
petition by mail on the respondent and the Ohio Attorney General. This service shall constitute
notice to the Attorney General.
Petitioner may, not later than twenty-one (21) days after the answer is filed, file and serve
a response to the return of writ. If respondent files a motion to dismiss, petitioner’s time to file a
memorandum in opposition will likewise be twenty-one days from service, as provided in S. D.
Ohio Civ. R. 7.2(a).
IT IS SO ORDERED.

Date: August 29, 2011

s/ J. Gregory Wehrman
J. Gregory Wehrman
United States Magistrate Judge

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