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Ted Smith v. William S. Baxter

January 3, 2012

TED SMITH, PETITIONER,
v.
WILLIAM S. BAXTER, NFETC ADMINISTRATOR, AND
FRANK E. SHEFFIELD, CIRCUIT JUDGE, GADSDEN COUNTY, RESPONDENTS.



The opinion of the court was delivered by: Gary R. Jones United States Magistrate Judge

ORDER

This matter is before the Court on Doc. 4, Petitioner's first amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee and, therefore, the Respondents will now be directed to file a response to the Petition.

The Respondents shall file a response to the Petition as directed in this order. The response shall be styled as an answer unless a motion to dismiss the petition, in whole or in part, due to a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations is appropriate, in which case such ground shall be asserted by motion. See § 2254 Rule 4 and Advisory Committee Notes (Court may authorize Respondent to address procedural bars by way of a motion to dismiss, "which may avoid burdening the Respondent with the necessity of filing an answer on the substantive merits of the petition."); § 2254 Rule 5(b). If a motion to dismiss some or all of the claims on a procedural ground is filed, Respondents need not also file an answer as to the merits of those claims only until the Court rules on the motion asserting the procedural ground. See id. Respondents may respond to the merits of the Petition without waiving the exhaustion requirement. See § 2254(b)(2) and § 2254(b)(3).

Petitioner may file a reply to any of the Respondents' arguments, including a motion to dismiss, within the time set by this order, but is not required to do so. § 2254 Rule 5(e).

The Court will review the record after the answer (or other motion) and Petitioner's reply (if any) are filed. If it does not appear that a hearing or additional argument is warranted, then the undersigned will make appropriate disposition of the motion or petition. If an evidentiary hearing is warranted and permitted, counsel will be appointed. § 2254 Rule 8. Accordingly, it is

ORDERED AND ADJUDGED:

1.The Clerk shall serve a copy of the amended petition, Doc. 4, along with this order, on Respondents and the Attorney General of the State of Florida via regular first-class mail.

2. Respondents shall file an answer or other pleading on or before February 2, 2012. If voluminous exhibits or records (such as transcripts) are submitted in support of the answer, paper copies shall be provided to the court.

3. Petitioner shall have until March 2, 2012, to file a reply, if desired.

Gary R. Jones

20120103

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