Phillips v. Cartledge
ORDER granting 50 Motion for Leave to Appear; granting in part and denying in part 51 Motion to Reopen Case. Signed by Honorable Patrick Michael Duffy on January 3, 2017.(jmcg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Shawn D. Phillips,
Warden Larry Cartledge,
C.A. No.: 0:16-cv-375-PMD-PJG
This matter is before the Court on Petitioner Shawn D. Phillips’ motion to reopen and to
amend his 28 U.S.C. § 2254 petition. For the reasons set forth herein, Petitioner’s motion is
granted in part and denied in part.
Petitioner filed his § 2254 petition on February 4, 2016. Respondent Warden Larry
Cartledge moved for summary judgment on July 25. The next day, Magistrate Judge Gossett
filed a Roseboro order. Then, on August 30, Judge Gossett ordered Petitioner to inform the
Court whether he intended to respond to Respondent’s motion. The next day, Petitioner filed a
request to extend his time to respond. Magistrate Judge Gossett granted Petitioner’s motion,
extending his time to respond until October 4. Despite that extension, Petitioner never filed a
response to Respondent’s motion. Thus, on October 11, Magistrate Judge Gossett filed an
R & R recommending that the Court dismiss Petitioner’s § 2254 petition with prejudice for
failure to prosecute. The clerk of court mailed the R & R to Petitioner and informed him that any
objections to the R & R were due on October 28. On November 3, however, the R & R was
returned to the clerk of court by the Broad River Correctional Institute, and was marked as
undeliverable. Then, on November 8, the Court agreed with the magistrate judge and dismissed
this action for lack of prosecution.
Respondent takes no position as to the reopening of Petitioner’s habeas proceeding.
Because Respondent does not object to reopening Petitioner’s habeas case, and in light of the
appearance of Petitioner’s counsel, the Court concludes that the interests of justice are served by
reopening this action.
Petitioner’s counsel also “seeks leave to amend [Petitioner’s] petition (if necessary).”
(Pet’r’s Mot. Reopen, ECF No. 51, at 5.) Respondent objects to any amendment of Petitioner’s
initial habeas filing, claiming that such amendment would be untimely under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). Pub. L. No. 104–132, 110 Stat. 1214 (1996). The
Court will not grant Petitioner blanket pre-approval to amend his petition. Without the benefit of
the proposed amendments, if any, the Court is in no position to address whether those
amendments are warranted. Should Petitioner wish to file an amended petition, he may file the
Petitioner also asks for an extension of time to contest Respondent’s motion for summary
judgment. That request is granted. Petitioner’s brief shall be due on February 1, 2017. Petitioner
also asks that the Court reset any previous deadlines. To the extent that there are any applicable
deadlines, Petitioner may request those extensions as the need arises.
For the foregoing reasons, it is ORDERED that Petitioner’s motion to reopen and to
amend his 28 U.S.C. § 2254 petition is GRANTED IN PART and DENIED IN PART.
AND IT IS SO ORDERED.
January 3, 2017
Charleston, South Carolina
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