Sutton v. Bell

Filing 77

AMENDED SCHEDULING ORDER (Final Pre-Evidentiary Hearing set for 4/28/2009 10:30 AM in Courtroom 3C - Knoxville before District Judge Thomas A Varlan. If an Evidentiary Hearing is necessary, it shall be held in Knoxville beginning on 5/12/2009 at 9:30 AM in Courtroom 3C - Knoxville before District Judge Thomas A Varlan.) Signed by Magistrate Judge C Clifford Shirley on 9/30/2008. (KMK) Modified on 10/2/2008 (KMK): to correct presiding Judge for the Evidentiary hearings

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE GARY WAYNE SUTTON Petitioner, v. RICKY BELL, WARDEN, Respondent. ) ) ) ) ) ) ) )

No. 3:06-cv-388 (VARLAN/SHIRLEY)

AMENDED SCHEDULING ORDER The Court previously entered a scheduling order in this case on December 14, 2006 (Doc. 4) and an amendment to the scheduling order on July 17, 2007 (Doc. 28). Upon motions of the parties requesting to change scheduling deadlines (Docs. 63 and 73), the Undersigned Magistrate Judge conducted a telephonic conference on Thursday, September 25, 2008, to resolve three motions and modify the scheduling order. Susanne Bales,1 counsel for Petitioner, Gary Wayne Sutton, and Jennifer Smith, counsel for Respondent, Ricky Bell, participated in the telephonic conference. The initial scheduling order (Doc. 4) and amendment to the initial scheduling order (Doc. 28) are AMENDED as follows: 1. Dispositive Motions: (a) Respondent's answer is deemed a dispositive motion.2 Respondent shall file

his amended answer/dispositive motion on or before Friday, October 3, 2008. (b) Petitioner shall file his response on or before Tuesday, November 18, 2008.

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Steve Ferrell was also in attendance with Attorney Susanne Bales.

During the telephonic conference the Undersigned Magistrate Judge deemed the Respondent's answer a dispositive motion because a large component of the Answer was seemingly designed to function as a motion for summary judgment or motion to dismiss (Doc. 30). 1

(c) December 23, 2008.

Respondent shall file his reply to the response on or before Tuesday,

Motions for summary judgment and responses shall include specific reference, including page numbers, to the transcript and/or record, and specific case cites. If Respondent asserts procedural default, Petitioner SHALL address each claim of procedural default. If Petitioner denies he defaulted on a claim, he shall cite the specific case where he raised the claim and cite the specific claim raised in the state court. If Petitioner admits the default but alleges cause and prejudice, he shall specifically address his cause and prejudice for each claim and cite specific cases supporting his cause and prejudice argument. When Petitioner claims the State Court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, then Petitioner shall include specific case cites to support his claim. When Petitioner claims the State Court's adjudication of the claim was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, Petitioner shall cite to the specific facts and reference the specific pages of the transcript and/or record. 2. Disclosure and Discovery: (a) Expert Testimony and Witness Testimony: Petitioner shall disclose to

Respondent any and all witnesses, including expert witnesses, and the anticipated testimony of and any information about the witness on or before Monday, March 16, 2009. Respondent shall disclose to Petitioner any and all witnesses, including expert witnesses, and the anticipated testimony of and any information about the witness on or before Monday, March 30, 2009.

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(b)

Expansion of Record: Any motions for expansion of the record under Rule

7 of the Rules Governing Section 2254 Cases in the United States District Courts shall be filed on or before Friday, October 10, 2008. 3. Other Scheduling Matters: (a) Pre-Evidentiary Hearing Order: The parties shall prepare and submit a final

pre-evidentiary hearing order to the Court on or before Monday, April 20, 2009. In this order, the parties shall set forth (1) all contested issues of fact; (2) all contested issues of law; (3) a list of all witnesses to be called; and (4) a list of all exhibits to be offered in evidence. (b) Proposed Findings of Fact and Conclusions of Law: The parties shall submit

to the Court proposed findings of fact and conclusions of law, which shall be supported by citations of authority in accordance with Local Rule 52.1, no later than Monday, April 27, 2009. Proposed findings of fact shall contain a jurisdictional statement, identity of the parties, and set out the facts in chronological order the particular party intends to prove at the evidentiary hearing. Conclusions of law should be concise with appropriate citations of authority pursuant to Local Rule 7.4. Conclusions of law should not argumentative. 4. Final Pre-Evidentiary Hearing Conference: A final pre-evidentiary hearing

conference shall be held in Knoxville on Tuesday, April 28, 2009, at 10:30 a.m. 5. Evidentiary Hearing: If an evidentiary hearing is necessary, it shall be held in

Knoxville beginning on Tuesday, May 12, 2009. The parties shall be prepared to commence the evidentiary hearing at 9:30 a.m. on the date which has been assigned. ENTER: s/ C. Clifford Shirley, Jr. United States Magistrate Judge

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