Dellinger v. Bell

Filing 71

ORDER granting 62 Petitioner's Motion to exceed the 25-page limitation on briefs pending Petitioner's submission of his reorganized brief and table of contents within 15 days from the date of this Order; granting 64 Pe titioner's Motion to expand the record, and the Respondent is ORDERED to file a complete copy of the state court record in the Sevier County, Tennessee case and to serve Petitioner's counsel with a copy; granting at this time 65 Petitione r's Motion to file a motion ex parte and under seal, pending further order of the Court; and granting 69 Respondent's Motion requesting an extension of time in which to file a reply to Petitioner's response to his summary judgment motion to the extent that Petitioner shall file his reply within fifteen (15) days from the date on which Petitioner files his reorganized response. Signed by Magistrate Judge C Clifford Shirley on March 7, 2012. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAMES DELLINGER,
Petitioner,
v.

ROLAND COLSON, Warden,
Respondent.

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NO. 3:09-cv-104
VARLAN/SHIRLEY
Death Penalty

ORDER
This matter is before the Court on Petitioner’s motions requesting to exceed the 25-page
limitation on briefs (Doc. 62); expand the record (Doc. 64); and file a document under seal (Doc.
65), and Respondent’s motion requesting an extension of time in which to file a reply to Petitioner’s
response to his summary judgment motion (Doc. 69). The motions will be addressed in the order
in which they were filed.
I.

Motion to Exceed Page Limitation
Petitioner requests permission to exceed the 25-page limitation on briefs to which

Respondent’s counsel does not oppose (Doc. 62). Petitioner has filed a two-hundred and forty-two
(242) page brief (Doc. 63) in response to Respondent’s 120 page response/motion for summary
judgment (Doc. 34). Petitioner’s decision to respond to Respondent’s summary judgment motion
in a different organizational format than Respondent’s summary judgment motion will require the
unnecessary expenditure of time and judicial resources, and could cause confusion in ruling on the
various claims.
Therefore, Petitioner is hereby ORDERED to reorganize his brief to address each claim, by
the same number and title, and in the same sequence and format, as it is raised in Respondent’s
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summary judgment motion. In addition, Petitioner’s brief SHALL include a table of contents. The
table of contents SHALL list each claim by the same number and title, and in the same sequence in
which the claim is raised in Respondent’s summary judgment motion and in Petitioner’s reorganized
brief. In addition, the table of contents SHALL identify the page numbers where the discussion of
each claim is raised in Petitioner’s responsive brief. Petitioner is ORDERED to file the reorganized
brief and table of contents within fifteen (15) days from the date of this Order. Petitioner and
Respondent SHALL hereafter, continue to comport their filings to the same format and sequence
as addressed in the filing to which they are responding.
Accordingly, the Court GRANTS Petitioner’s motion to exceed the 25-page limitation on
briefs pending Petitioner’s submission of his reorganized brief and table of contents within fifteen
(15) days from the date of this Order (Doc. 62).1
II.

Motion to Expand the Record
Petitioner requests the Court to either order the Clerk of this Court to duplicate and

supplement the record in this case with the entire state court record in the Sevier County case or
direct Respondent to file a complete copy of the state court record in the Sevier County case with
the Court Clerk in this case (Doc. 64). Respondent opposes the motion arguing that the claim which
the record supports is procedurally defaulted. Petitioner maintains that even if the double jeopardy
claim is procedurally defaulted, the merits of the double jeopardy claim must be considered because
they establish Petitioner is actually innocent of the death penalty (Doc. 64).

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The Court requests Petitioner to give serious consideration to reducing the length
of his response to the motion for summary judgment to no more than 200 pages, but in any event,
the reorganized response SHALL not exceed 242 pages.
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Accordingly, the Court GRANTS the motion and ORDERS Respondent to file a complete
copy of the state court record in the Sevier County, Tennessee case and to serve Petitioner’s counsel
with a copy.1
III.

Motion to File Document Ex Parte and Under Seal
Also before the Court is Petitioner’s motion to file a motion ex parte and under seal (Doc.

65) and the proposed sealed motion (Doc. 66). Petitioner requests to file the motion ex parte and
under seal as it includes attorney-client relationship matters and matters governed by the Rules of
Professional Conduct (Doc. 65). Accordingly, the motion to file ex parte and under seal is
GRANTED at this time pending further order of the Court (Doc. 65).
It is hereby, ORDERED that the motion be filed EX PARTE and UNDER SEAL pending
further order of the Court (Doc. 66). Local Rule 26.2. The motion to seal (Doc. 65) and this Order
SHALL remain unsealed and in the public record.
IV.

Respondent’s Motion for Extension of Time to Reply to Petitioner’s Summary
Judgment Response
Finally, before the Court is Respondent’s motion requesting an extension of time in which

to file a reply to Petitioner’s response to his summary judgment motion (Doc. 69). The motion is

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To the extent Petitioner seeks the Court to review the entire record of the Sevier
County, Tennessee case, such review will generally be limited to those portions of the record
specifically referenced by Petitioner or Respondent in support of his argument(s).
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GRANTED to the extent that Petitioner SHALL file his reply within fifteen (15) days from the date
on which Petitioner files his reorganized response (Doc. 69).
SO ORDERED.
ENTER:

s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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