The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO FILE LATE ANSWER
OR OTHER RESPONSIVE PLEADING TO PETITION FOR WRIT OF HABEAS
Before the Court is Respondent's Ex Parte Application for Leave
to File Late Answer or other Responsive Pleading. By this Court's
original scheduling order, Respondent was required to file a
Motion to Dismiss no later than July 25, 2005, or an Answer no
later than August 8, 2005. Respondent filed an application
seeking an extension, through and including September 9, 2005, to
file either a Motion to Dismiss or an Answer in this case. The
Court granted Respondent's request on July 27, 2005; however,
Respondent failed to file a Motion to Dismiss or Answer by the
new deadline. Respondent now requests that the Court extend the
deadline further to September 21, 2005. In support, counsel for
Respondent asserts that due to inadvertence, "the extension was
not properly calendared." [Application at 1.] Counsel states that
she did not learn of the "inadvertent error" until September 13,
2005 when she immediately began drafting a responsive pleading on
behalf of the Respondent. She anticipates having a responsive
pleading ready for filing by September 21, 2005. [Declaration of
Malich at ¶¶ at 3-5.] The Court is somewhat perplexed by counsel's apparent
unawareness of the September 9 deadline, since this was the
deadline proposed by Respondent in its earlier Application.
Nonetheless, the Court finds that the interests of justice weigh
in favor of granting the short extension sought by Respondent.
The Court advises, however, that further extensions shall not be
granted to Respondent based on failure to calendar the Court's
scheduling orders. All parties are expected to read and comply
with this Court's orders. Good cause appearing,
IT IS HEREBY ORDERED that the Application is GRANTED.
Briefing in the case shall proceed as follows:
1. If Respondent contends the Petition can be decided without
the Court's reaching the merits of Petitioner's claims (e.g.,
because Respondent contends Petitioner has failed to exhaust any
state remedies as to any ground for relief alleged in the
Petition, or that the Petition is barred by the statute of
limitations, or that the Petition is subject to dismissal under
Rule 9 of the Rules Governing § 2254 Cases, or that all of the
claims are procedurally defaulted, or that Petitioner is not in
custody), Respondent shall file a motion to dismiss pursuant to
Rule 4 of the Rules Governing § 2254 Cases no later than
September 21, 2005. The motion to dismiss shall not address the
merits of Petitioner's claims, but rather shall address all
grounds upon which Respondent contends dismissal without reaching
the merits of Petitioner's claims is warranted.*fn1 At the
time the motion to dismiss is filed, Respondent shall lodge with
the Court all records bearing on Respondent's contention in this
regard. The lodgments shall be accompanied by a notice of
lodgment which shall be captioned "Notice of Lodgment in
28 U.S.C. § 2254 Habeas Corpus Case To Be Sent to Clerk's Office."
A hearing date is not required for the motion to dismiss.
2. If Respondent files a motion to dismiss, Petitioner shall
file his opposition to the motion, if any, no later than October
19, 2005. At the time the opposition is filed, Petitioner shall
lodge with the Court any records not lodged by Respondent which
Petitioner believes may be relevant to the Court's determination
of the motion. 3. Unless the Court orders otherwise, Respondent shall not file
a reply to Petitioner's opposition to a motion to dismiss. If the
motion is denied, the Court will afford Respondent adequate time
to respond to Petitioner's claims on the merits.
4. If Respondent does not contend that the Petition can be
decided without the Court reaching the merits of Petitioner's
claims, Respondent shall file and serve an answer to the Petition
no later than September 21, 2005. At the time the answer is
filed, Respondent shall lodge with the Court all records bearing
on the merits of Petitioner's claims. The lodgments shall be
accompanied by a notice of lodgment which shall be captioned
"Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case To Be
Sent to Clerk's Office."
5. Petitioner may file a traverse to matters raised in the
answer no later than October 19, 2005. Any traverse by
Petitioner (a) shall state whether Petitioner admits or denies
each allegation of fact contained in the answer; (b) shall be
limited to facts or arguments responsive to matters raised in the
answer; and (c) shall not raise new grounds for relief that were
not asserted in the Petition. Grounds for relief withheld until
the traverse will not be considered. The traverse shall not
exceed ten (10) pages in length absent advance leave of Court and
for good cause shown.
6. All other terms and conditions of the Court's scheduling
orders filed June 27, 2005, and July 27, 2005 shall remain in
full force and effect.
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