Knod v. Director, TDCJ-CID
Filing
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MEMORANDUM OPINION and ORDER. The Petitioner's motion for production is GRANTED. The Clerk is ordered to print and mail DE 1 and DE 2 to the Petitioner at no cost to him. All relief sought in 9 Motion is DENIED. Petitioner's 10 Motion for Speedy Hearing and 11 letter motion for a ruling are DENIED as MOOT. Signed by Judge Michael H. Schneider on 12/1/11. (leh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DANIEL LEE KNOD, #1593785
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 6:11cv140
MEMORANDUM OPINION AND ORDER
On March 23, 2011, Petitioner, proceeding pro se and seeking to proceed in forma pauperis,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entries #1 & 2). The
case was referred to Magistrate Judge Judith K. Guthrie pursuant to 28 U.S.C. § 636(b).
The petition in this case purports to challenge both a parole revocation proceeding and a
disciplinary proceeding. The filing consisted of 69 pages, including reproduced portions of a Texas
Department of Criminal Justice (“TDCJ”) policy manual and a decision of the United States Court
of Appeals for the Fifth Circuit. The pleading also includes a form petition and a separate statement
of facts, by itself totaling 44 pages. Eastern District of Texas Local Rule CV-3 limits pro se filings
to 20 pages, including attachments. Petitioner did not seek leave to file an over-length document in
this case. Further, he also purported to incorporate by reference a number of documents and exhibits
from a separate case styled Knod v. Director, TDCJ-CID, Case No. 6:10cv22.1
The Magistrate Judge ordered the petition as it was submitted stricken and directed Petitioner
1
Petitioner’s habeas petition in case no. 6:10cv22 and the instant case appear to be
regarding two separate disciplinary cases. That will be confirmed when Petitioner files his
amended petition in the instant case.
1
to file a new petition within 30 days, conforming to L.R. CV-3(b). See docket entry #5. In her
Order, the Magistrate Judge cited several reasons for striking the petition as filed, including that it
exceeded the length limitation of L.R. CV-3(b); it did not contain sufficient information regarding
the facts of Petitioner’s case; and it purported to impermissibly incorporate by reference documents
from another case.
Petitioner did not file a conforming petition, but requested an extension of time in which to
do so and concurrently filed a number of substantive motions all in one omnibus document (docket
entry #9). These include a Motion for Reconsideration; a Motion for Declaratory Judgment; a
Motion to Disqualify the Magistrate Judge; a Motion for Reproduction of Record; and, a Motion for
Appointment of Counsel. On September 13, 2011, this Court issued a Memorandum Opinion and
Order addressing only Petitioner’s Motion for Reconsideration, treated as a motion for de novo
review pursuant to Fed. R. Civ. P. 72(a), and granting his request for an extension of time to file an
amended petition. See Docket Entry #15. Because Petitioner seeks a declaratory judgment and
because the issues are intermingled with the undersigned District Judge’s de novo review pursuant
to Rule 72(a), the undersigned now supplements its earlier Memorandum Opinion and Order and
addresses the remaining issues raised in Petitioner’s omnibus motion. In that light, the Court will
also address Petitioner’s associated Motion for Speedy Hearing (docket entry #10) and letter motion
seeking a ruling (docket entry #11).
I.
DECLARATORY JUDGMENT
Petitioner first seeks a declaratory judgment that Eastern District Local Rule CV-3 is
unconstitutional “insofar as it attempts to limit the filing of an original petition for writ of habeas
corpus to (20) pages without permission. . . .” Motion at 5. Local Rule CV-3 states:
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Absent permission obtained from the presiding judge, all documents filed by pro se prisoners
and pro se non-prisoners are limited to twenty pages, including attachments.
See Local Rule CV-3(b). Therefore, the Local Rule states an essentially managerial function in
control of the Court’s dockets. In this case, the Clerk accepted and docketed Petitioner’s overly long
and deficient petition, consistent with the recent holding of the United States Court of Appeals for
the Fifth Circuit’s brief discussion of Local Rule CV-3(b) in Marquez v. Woody, 2011 WL 3911080,
at *10 n.11 (5th Cir. Sept. 6, 2011) (simply requiring that the Court’s Clerk may not refuse to accept
a filing because it is not in the form required by a local rule), and the Magistrate Judge reviewed it
prior to ordering it stricken and an amended petition filed. Petitioner nonetheless contends that the
length requirement of Local Rule CV-3(b) itself is unconstitutional as applied to federal habeas
corpus petitions.
The Declaratory Judgment Act states in pertinent part:
In a case of actual controversy within its jurisdiction . . . any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.
Any such declaration shall have the force and effect of a final judgment or decree and shall
be reviewable as such.
See 28 U.S.C. § 2201(a) (inapplicable exceptions omitted). The statute uses permissive, not
mandatory, language. American Federation of State, County, and Mun. Employees, Local 59 v. El
Paso City/County Health District, 198 F.3d 240, 1999 WL 824479, at *3 (5th Cir. 1999). “The
district court has broad discretion to grant (or decline to grant) declaratory judgment.” Winton v.
Seven Falls Co., 41 F.3d 934, 935 (5th Cir. 1994) (citing Torch, Inc., v. LeBlanc, 947 F.2d 193, 194
(5th Cir. 1991)), aff’d, 515 U.S. 277, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). Decisions of the
district court will be reviewed under the abuse of discretion standard. Id. (citing Rowan Cos. v.
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Griffin, 876 F.2d 26, 29 (5th Cir. 1989)).
Here, Petitioner relies on Ex parte Hull, 312 U.S. 546, 548-49, 61 S. Ct. 640, 85 L. Ed. 1034
(1941), in support of his contention that the 20-page limitation is unconstitutional as applied to a
federal habeas petition. There, a prison warden had imposed a regulation on prisoners filing court
briefs that all such briefs would have to first be submitted to prison officials for review and approval
as to form before being submitted to the federal court. Disapproved documents, including federal
habeas petitions, would be returned to the prisoner. Id. The Supreme Court held that regulation to
be invalid because a “state and its officers may not abridge or impair petitioner’s right to apply to
a federal court for a writ of habeas corpus.” Id. at 549; see also Crowder v. Sinyard, 884 F.2d 804,
811 (5th Cir. 1989), cert. denied, 496 U.S. 924, 110 S. Ct. 2617, 110 L. Ed. 2d (1991). That precept
applies to a state’s attempt to curtail access to federal court, however, not the managerial power of
the federal court itself. As the Supreme Court went on to add, “[w]hether a petition for writ of
habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are
questions for that court alone to determine.” Ex parte Hull, 312 U.S. at 549 (emphasis added). In
this case, no state agency has imposed any restriction or filter on Petitioner’s ability to access this
Court; indeed, his very petition demonstrates that. Instead, the Court itself imposed its managerial
authority to limit the volume of the filing in Petitioner’s case and exclude unnecessary and
superfluous material while requiring the inclusion of certain essential information at the initial
pleading stage. As the Court stated in its Memorandum Opinion and Order of September 13, 2011:
An order of that nature is amply supported by the axiom that “a federal district court has both
specific and inherent power to control its docket.” See Miller v. Thaler, 2011 WL 3209879,
at *1 (5th Cir. July 28, 2011) (quoting In re United Markets Int’l, Inc., 24 F.3d 650, 654 (5th
Cir. 1994)). That power in this case is reflected in the managerial function of L.R. CV-3(b).
That local rule limits the size of pleadings submitted by pro se litigants who, as Petitioner
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himself admits, are not lawyers trained in legal drafting.
See id. at 4. As the Court further noted, exercise of Local Rule CV-3(b) is not inflexible and page
limits may be exceeded for good cause shown. This function is wholly consistent with Ex parte
Hull, 312 U.S. at 549, on which Petitioner relies. However, here, Petitioner has made no such
showing of good cause, or even an effort to do so. Indeed, his original petition was disjointed with
superfluous material and yet incomplete by its attempt to incorporate by reference documents that
do not appear in this case. The exercise of the Court’s managerial function to require him to file an
amended petition, consistent with the Court’s internal rules, was appropriate.
Petitioner further contends, without explanation, that this Local Rule has “violated his right
to due process, denied him access to the court, operated as a suspension of the writ of habeas corpus,
and undermined the prison mailbox rule.” Motion at 5-6. He does not argue these points, but merely
cites to a string of authorities, including 28 U.S.C. § 2202; Wright v. Dickson, 336 F.2d 878 (9th Cir.
1964), cert. denied, 386 U.S. 1012, 87 S. Ct. 1360, 18 L. Ed. 2d 444 (1967); Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts (the “Habeas Rules”); and U.S.
Const. art. I, § 9, cl. 2 and U.S. Const. amend. V.
First, 28 U.S.C § 2202 does not aid Petitioner’s claim. In full, it states:
Further necessary or proper relief based on a declaratory judgment or decree may be granted,
after reasonable notice and hearing, against any adverse party whose rights have been
determined by such judgment.
See id. The statute simply provides that “a declaratory judgment might serve as the basis for
issuance of a later injunction to give effect to the declaratory judgment . . . .” See Steffel v.
Thompson, 415 U.S. 452, 461 n.11, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974); see also Bauhous USA,
Inc. v. Copeland, 292 F.3d 439, 449 & n.18 (5th Cir. 2002) (“as the Declaratory Judgment Act
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provides, a successful declaratory plaintiff may seek ‘[f]urther necessary or proper relief’ to enforce
a declaratory judgment.”). It does not provide a basis in support of Petitioner’s claims herein.
Next, Petitioner’s citations to the Ninth Circuit case of Wright, supra, and Rule 4 of the
Habeas Rules both appear to support one argument. That is, the Ninth Circuit in Wright stated,
“[u]nless a petition for habeas corpus reveals on its face that as a matter of law the petitioner is not
entitled to the writ, the writ or an order to show cause must issue.” Wright, 336 F.2d at 881. Rule
4 of the Habeas Rules states:
The clerk must promptly forward the petition to a judge under the court’s assignment
procedure, and the judge must promptly examine it. If it plainly appears from the petition
and any attached exhibits that the petition is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is
not dismissed, the judge must order the respondent to file an answer, motion, or other
response within a fixed time, or to take other action the judge may order.
See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts; see also
McFarland v. Scott, 512 U.S. 849, 856 114 S. Ct. 2568, 129 L. Ed. 2d 666 (1994) (“Federal courts
are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face
. . . .”) (citing Rule 4 of the Habeas Rules). Petitioner would read this rigidly to mean that any
federal writ of habeas corpus presented to a federal court must be reviewed as submitted and that,
once reviewed, the federal court must either dismiss the petition as without basis for relief or order
the respondent to file a response, with no other action possible. That is inconsistent with both Ex
parte Hull, 312 U.S. at 549, on which Petitioner relies, and with the federal court’s “specific and
inherent power to control its docket,” supra.
For example, it is without question that a federal district court may, sua sponte, dismiss a
habeas petition as time-barred under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”).
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See Smith v. Johnson, 247 F.3d 240, 2001 WL 43520, at *2 (5th Cir. 2001) (per curiam) (citing Kiser
v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999)). However, the Supreme Court has held that before
doing so, a district court must accord the petitioner fair notice and an opportunity to present his
position. Day v. McDonough, 547 U.S. 198, 210, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006). That
is, to afford the petitioner an opportunity to supplement or amend his petition before simply ruling
on the petition as submitted. Therefore, the language of Rule 4 of the Habeas Rules and cases
following in the vein of the Ninth Circuit’s decision in Wright does not preclude a federal district
court from ordering a petitioner to take some action and file documents aside from his original
petition.
In the instant case, for example, the Court followed this very precept. Instead of simply
dismissing Petitioner’s petition for failure to provide full and complete information on the filing
form and his impermissible attempt to incorporate by reference documents not present in the instant
case, see Gooden v. Crain, 255 Fed. Appx. 858, 862 (5th Cir. 2007) (per curiam) (incorporation of
pleadings from outside the current case is not contemplated by Fed. R. Civ. P. 10(c)), the Magistrate
Judge ordered the original petition stricken and the Petitioner to file an amended petition. Thus,
Petitioner’s right to seek habeas relief and the Court’s right to manage its docket by requiring the
filing of pertinent documents were both preserved. The operation of Local Rule CV-3(b),
establishing a flexible length limit on pro se filings, is consistent with that action.
Next, Petitioner briefly contends that Local Rule CV-3(b) undermines the “prison mailbox
rule,” but once again does not explain how that is so. The mailbox rule governs the effective date
of filing of an incarcerated prisoner’s habeas petition. See Houston v. Lack, 487 U.S. 266, 276, 108
S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
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Generally, its operation recognizes the realities of access to mail and court facilities while in prison
and preserves a prisoner’s filing date by making it effective as of the date a filing is delivered to the
prison mail system. In this case, Petitioner’s habeas petition was docketed on March 23, 2011, but
carries the signed certification that Petitioner delivered it to the prison mail system on March 17,
2011, which is the effective date of filing in this Court. Even though the Magistrate Judge in this
case ordered the original petition stricken due in part to Local Rule CV-3(b), Petitioner’s case was
filed and his filing date preserved even if he must file an amended petition. He has not shown
otherwise, nor how Local Rule CV-3(b) “undermines” the mailbox rule.
Next, Petitioner invokes U.S. Const. art. I, § 9, cl. 2, apparently for his contention that the
Court’s imposition of Local Rule CV-3(b) impermissibly suspended the writ of habeas corpus in his
case. That portion of the Constitution states:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
See U.S. Const. art. I, § 9, cl. 2 (the “Suspension Clause”). Again, Petitioner has provided no
argument in support of his contention whatsoever. However, a limitation does not violate the
Suspension Clause unless it “renders the habeas remedy ‘inadequate or ineffective’ to test the legality
of detention.” Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam) (analyzing whether
the one-year statute of limitations under the AEDPA violates the Suspension Clause) (citing Miller
v. Marr, 141 F.3d 976, 977 (10th Cir.), cert. denied, 525 U.S. 891, 119 S. Ct. 210, 142 L. Ed. 2d 173
(1998)). Petitioner has not argued in any way, much less shown, how Local Rule CV-3(b) makes
the habeas remedy inadequate or ineffective for him, especially inasmuch as he has not only been
allowed, but directed to file an amended petition for federal habeas relief. Molo, 207 F.3d at 775.
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Through his final argument in this motion, Petitioner invokes U.S. Const. amend. V. He does
not state any argument supported by invocation of the Fifth Amendment, but the Court will assume
he intends it with regard to his conclusory assertion of a due process violation (“No person shall be
. . . deprived of life, liberty, or property, without due process of law . . . .”). Notwithstanding
Petitioner’s lack of argument, the Court notes that in its most basic terms, “due process” in the
context of court proceedings “requires an impartial decisionmaker and a chance to present
evidence[.]” Panetti v. Quarterman, 551 U.S. 930, 972 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007)
(citing Ford v. Wainwright, 477 U.S. 399, 427, 106 S. Ct. 2595, 92 L. Ed. 2d 335 (1986) (context
of a state sanity proceeding)). The fact that Petitioner was allowed to file his habeas petition in the
first instance and that the Magistrate Judge2 did not simply foreclose a subsequent filing due to Local
Rule CV-3(b) but affirmatively directed Petitioner to file an amended habeas corpus petition
adequately demonstrates that Petitioner’s claim is unsupported.
Separately, Petitioner filed a Motion for Speedy Hearing (docket entry #10). In addition to
his notional speedy hearing request, he also cites a number of cases in which various district court
local rules have been found to be unconstitutional or otherwise invalid. Once again, he does not
actually describe any of the holdings of these cases, nor argue their applicability to his case. Instead
he merely cites Fed. R. Civ. P. 83. Rule 83(a)(1) states that local rules must be consistent with
federal statutes; Rule 83(a)(2) states that “a requirement of form must not be enforced in a way that
causes a party to lose any right because of a nonwillful failure to comply.” He does not show how
Local Rule CV-3(b) or its operation in his case is contrary to Rule 83, but simply states, “[m]any
2
To be sure, the Petitioner has moved in his same filing to disqualify the
Magistrate Judge for bias or prejudice; however, as the Court determines below, Petitioner’s
motion is without basis.
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local rules have been held invalid for this reason, or because they are inconsistent with the
constitution[.]” Motion for Speedy Hearing at 2. However, none of the cases he cites apply to Local
Rule CV-3(b) or the facts of Petitioner’s case. In Miner v. Atlass, 363 U.S. 641, 651, 80 S. Ct. 1300,
4 L. Ed. 2d 1462 (1960), the Supreme Court ruled that a local rule allowing for the taking of
depositions where they were not allowed for under the Admiralty Rules was invalid. In Frazier v.
Heebe, 482 U.S. 641, 646-47, 107 S. Ct. 2607, 96 L. Ed. 2d 557 (1987), the Supreme Court held that
a local rule requiring in-state residence for admission to the bar of the district court discriminated
against out-of-state attorneys who had passed the state’s bar and paid the necessary fees for
admission. In Carter v. Clark, 616 F.2d 228, 231 (5th Cir. 1980), the Fifth Circuit held that a local
rule requiring that all prisoner filings that were required to be verified must be notarized was
inconsistent with 28 U.S.C. § 1746, which allowed written declarations simply filed “under penalty
of perjury.” In Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 1991), the Sixth Circuit overruled a
district court’s interpretation of a local rule under which it dismissed a prisoner’s civil rights action
for failure to respond to a motion. Finally, in Bailey v. Systems Innovations, Inc., 852 F.2d 93, 101
(3d Cir. 1988), the Third Circuit found that an order restricting the parties’ actions pursuant to a local
rule instead of observing the procedural requirements of injunctive relief violated the First
Amendment.
The Court agrees that there have been instances where a local rule, or an interpretation of a
local rule, has been overturned on review. However, the cases cited by Petitioner, above, do not
support his contention that Local Rule CV-3(b) is unconstitutional as regards his right to file a
federal habeas petition. Furthermore, his right to file a habeas petition has not been “lost” due to any
failure to comply with the local rule; indeed, he has been directed to file his amended petition and
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has been given extensions of time in which to comply with the Court’s order. He has not shown any
violation or conflict with Fed. R. Civ. P. 83.
For these reasons, Petitioner has failed to show that the flexible page limitation of 20 pages
required by Local Rule CV-3(b) is unconstitutional as applied to federal habeas corpus petitions.
Therefore, the Court will deny his motion for declaratory judgment.
II.
DISQUALIFICATION OF MAGISTRATE JUDGE
Petitioner next moves to disqualify or recuse the Magistrate Judge for bias or prejudice
because he “sees the Magistrate’s own motion to strike as aiding and assisting the Respondent in
violating his constitutional rights and questions her impartiality,” citing 28 U.S.C. § 455. See
Motion at 7. In his declaration, Petitioner further states that “Magistrate Guthrie is well aware of
Petitioner’s situation from civil action no. 6:10cv22,” which was dismissed. See Knod Declaration
at PageID #93-94 (sequentially attached to Petitioner’s motion).
“[I]f the issue of a judge recusing herelf arises [ ] through a motion to recuse under § 455 .
. ., the judge has the option to either transfer the matter to another judge for decision or determine
it herself.” See Maldonado v. Ashcroft, 108 Fed. Appx. 221, 222 (5th Cir. 2004) (per curiam) (citing
Doddy v. Oxy USA, Inc., 101 F.3d 448, 458 n. 7 (5th Cir.1996)), cert. denied, 545 U.S. 1133, 125
S. Ct. 2946, 162 L. Ed. 2d 875 (2005). In this case, because Petitioner raised this motion in
connection with an effective Fed. R. Civ. P. 72(a) request for review of the Magistrate Judge’s order
invoking Local Rule CV-3(b), above, the undersigned District Judge will rule on the motion.
The main thrust of Petitioner’s motion is that the Magistrate Judge’s previous ruling with
regard to Local Rule CV-3(b) and his original petition unfavorable to him. Further, it appears he
may believe that the Magistrate Judge harbors some bias toward him because of the outcome of his
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previous case no. 6:10cv22. However, prior adverse judicial rulings alone do not support an
allegation of bias under 28 U.S.C. § 455. Maldonado, 108 Fed. Appx. At 222. “In order for a judge
to be disqualified for bias or prejudice, the bias must stem from an extrajudicial source and result
in an opinion on some basis other than what the judge learned in the case.” Crawford v. United
States Dept. of Homeland Sec., 245 Fed. Appx. 369, 383 (5th Cir. 2007) (per curiam) (citing United
States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966); United States
v. MMR Corp., 954 F.2d 1040, 1045 (5th Cir. 1992)), cert. denied, 553 U.S. 1054, 128 S. Ct. 2487,
171 L. Ed. 2d 768 (2008). Petitioner’s claim of bias, therefore, is merely speculative and conclusory,
Crawford, 245 Fed. Appx. at 383, and his motion to disqualify the Magistrate Judge will be denied.
III.
MOTION FOR PRODUCTION
Petitioner next avers that he “will be unable to proceed without reproduction of the record
or deficient pleading” because he was unable to keep a copy of his original petition when he mailed
it for filing. Motion at 8. Although not required to do so, in this instance, the Court will direct the
Clerk to print and mail to Petitioner at no cost the documents filed in docket entries #1 and 2.
IV.
MOTION FOR APPOINTMENT OF COUNSEL
The final remaining motion raised in this omnibus filing is Petitioner’s request for
appointment of counsel. The rule governing the appointment of counsel in § 2254 habeas corpus
proceedings is Rule 8(c) of the Habeas Rules. The rule provides that the presiding judge shall
appoint counsel for a petitioner if an evidentiary hearing is required and the petitioner qualifies for
appointment of counsel under 18 U.S.C. § 3006A(g). No evidentiary hearing is currently required
here. Accordingly, Petitioner’s request will be denied without prejudice to refiling at a later date.
Is it therefore
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ORDERED that Petitioner’s motion for production is GRANTED and the Clerk shall print
and. mail to Petitioner without charge a copy of the documents filed at Docket Entries #1 and 2. It
is further
ORDERED that all other relief sought in Docket Entry #9 is hereby DENIED. It is further
ORDERED that Petitioner’s Motion for Speedy Hearing (docket entry #10) and letter motion
for a ruling (docket entry #11) are DENIED as MOOT.
It is SO ORDERED.
SIGNED this 1st day of December, 2011.
____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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