Franklin v. Warden, Chillicothe Correctional Institution

Filing 8

ORDER - Petitioner shall file any motion for discovery under Habeas Rule 6 that he wishes the Court to consider not later than January 14, 2013. In the absence of such a motion, the Magistrate Judge will deem the case ripe for decision on the merits. Signed by Magistrate Judge Michael R Merz on 1/4/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANTONIO SANCHEZ FRANKLIN,
Petitioner,

:

Case No. 3:12-cv-312

- vs -

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
Respondent.

:

ORDER

This capital habeas corpus case is before the Court sua sponte upon review of the docket.
On November 5, 2012, the Court ordered the Warden to file an answer conforming to the
requirements of Rule 5 of the Rules Governing § 2254 Cases not later than December 5, 2012
(Order for Answer, Doc. No. 5, PageID 40). The Warden filed his answer, denominated as a
Return of Writ, on that date (Doc. No. 7). The Return raises, inter alia, the defenses that the
Petition does not state a claim cognizable in habeas corpus (PageID 51-55), that it is a second or
successive petition governed by 28 U.S.C. § 2244(b) (PageID 55-59), and that relief on the
merits is precluded by precedent (PageID 59-60).
As provided in Habeas Rule 5(e), the Court set a date for Petitioner to file a reply twentyone days after the Answer/Return was filed (Order for Answer, Doc. No. 5, PageID 41). Adding
the three days provided by Fed. R. Civ. P. 6(d) and excluding Saturday December 29 and Sunday
December 30 as provided by Fed. R. Civ. P. 6(a)(1)(C), Petitioner’s reply was due to be filed by
December 31, 2012. No reply has been filed and the Court therefore deems the pleadings as
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closed without a reply.
No state court record was filed with the Return, but, in the absence of any reply, the
Court concludes Petitioner has no objection, relying instead on the record filed in his other
capital habeas corpus case, 3:04-cv-187, despite the request for a record made in the Petition
(Doc. No. 2, PageID 19).
Petitioner makes an unspecified request for discovery in the Petition. Id. Petitioner shall
file any motion for discovery under Habeas Rule 6 that he wishes the Court to consider not later
than January 14, 2013. In the absence of such a motion, the Magistrate Judge will deem the case
ripe for decision on the merits.
January 4, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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