Opinion
Case No. 1:11-cr-079 Civil Case No. 1:13-cv-775
02-07-2014
UNITED STATES OF AMERICA, Plaintiff, v. CHARLES L. PATTON, Defendant.
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
DECISION AND ORDER TO ANSWER
This criminal case is before the Court on Defendant Patton's Amended Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 140). The Government had not yet answered the original Motion because the Magistrate Judge recommended dismissing it because the claims made were barred by procedural default (Reports and Recommendations, Doc. Nos. 135 & 139). In the most recent Report, the Magistrate Judge virtually invited Patton to file an amended motion because he was attempting to raise a claim of ineffective assistance of trial counsel which the Sixth Circuit had said should be raised by § 2255 motion, but which was not included in his original Motion. To the extent required by Fed. R. Civ. P. 15 under the circumstances, Patton's request to amend is GRANTED.
It does not plainly appear from the face of the motion, the annexed exhibits, and the prior proceedings in the case that Defendant is not entitled to relief. Accordingly, it is hereby ORDERED that the United States Attorney shall, not later than April 1, 2014, file an answer conforming to the requirements of Rule 5 of the Rules Governing §2255 Cases. Specifically, said answer shall respond to each allegation made in the Motion, raise any affirmative defenses available to the United States, and state whether Defendant has previously received an evidentiary hearing on any of the matters he now raises or whether he is entitled, in the Government's view, to an evidentiary hearing in this proceeding.
Defendant may, not later than twenty-one days after the Answer is filed, file and serve a reply or traverse to the Answer. If the Government files a motion to dismiss, Defendant's time to file a memorandum in opposition will likewise be twenty-one days from service, as provided in S. D. Ohio Civ. R. 7.2(a).
Michael R. Merz
United States Magistrate Judge