Day v. Warden London Correctional Institution

Filing 2

ORDER FOR ANSWER - It is hereby ORDERED that Respondent shall, not later than July 12, 2010, file an answer conforming to the requirements of Rule 5 of the Rules Governing §2254 Cases. Petitioner may, not later than twenty-one days after the ans wer is filed, file and serve a reply to the answer. The Clerk is ordered to serve the Petition on Respondent and the Attorney General of Ohio, c/o Assistant Attorney General Diane Mallory, Sections Coordinator, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215. Signed by Magistrate Judge Michael R Merz on 6/2/2010. (kpf1)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON STEVEN DAY, : Petitioner, : -vsDEB TIMMERMAN-COOPER, Warden, : Respondent. Case No. 3:10-cv-206 District Judge Walter Herbert Rice Magistrate Judge Michael R. Merz ORDER FOR ANSWER This is an action pursuant to 28 U.S.C. 2254 for a writ of habeas corpus; Petitioner seeks release from confinement imposed as part of the judgment of a State court in a criminal action. The case has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b) and the Dayton General Order of Assignment and Reference. Upon preliminary consideration pursuant to Rule 4 of the Rules Governing 2254 Cases, the Court finds that it does not plainly appear from the face of the Petition and any exhibits attached thereto that the Petitioner is not entitled to relief in this Court. Accordingly, it is hereby ORDERED that Respondent shall, not later than July 12, 2010, file an answer conforming to the requirements of Rule 5 of the Rules Governing 2254 Cases. Specifically, said answer shall respond to each allegation made in the Petition, raise any affirmative defense relied on by Respondent, and state whether, from Respondent's perspective, any claim in the Petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations. -1- The answer shall be accompanied by those portions of the state court record needed to adjudicate this case, appropriately indexed and tabbed. As required by Fed. R. Civ. P. 5, a complete copy of the answer and attachments must be served on Petitioner at the time of filing. In lieu of these attachments, Respondent may request and the Court will issue a writ of certiorari to the relevant county's Clerk of Courts to produce the complete record. Nothing in this Order is intended to prevent Respondent from filing a motion to dismiss or other pleading before filing the complete record if disposition can be made on an incomplete record. Petitioner may, not later than twenty-one days after the answer is filed, file and serve a reply to the answer. 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). The Clerk is ordered to serve the Petition on Respondent and the Attorney General of Ohio, c/o Assistant Attorney General Diane Mallory, Sections Coordinator, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215. June 2, 2010. s/ Michael R. Merz United States Magistrate Judge J:\Documents\Day Habeas OrdAnswer.wpd -2-

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