Opinion
CASE NO. 4:08-cv-215-RH-AK.
July 14, 2008
ORDER
This matter is before the Court on Doc. 7, Amended Petition for Writ of Habeas Corpus, filed by Horace Ash. By separate order, Petitioner has been granted IFP status. The Court has reviewed the petition, and Respondent will be required to file an answer or other pleading within the time set by this order. See § 2254 Rules 4 and 5. If an answer is filed, it shall be in compliance with § 2254 Rule 5. If a response is filed which raises a procedural argument not going to the merits, Respondents may await a ruling on that defense before filing an answer on the merits. Alternatively, Respondent may proceed directly to the merits without necessarily waiving the exhaustion requirement. See 28 U.S.C. §§ 2254(b)(2) and 2254(b)(3).
Petitioner may file a response to Respondent's arguments within the time set by this order, but he is not required to do so. Upon receipt of the Respondent's arguments and Petitioner's response (if any), the court will review the file to determine whether an evidentiary hearing is required. An evidentiary hearing will not be required unless consideration of disputed evidence outside the state court record appears necessary to the court. If it is determined that an evidentiary hearing is not required, the court will dispose of the petition as justice requires pursuant to § 2254 Rule 8(a).
Accordingly, it is ORDERED:
That Walter McNeil is hereby SUBSTITUTED in place of Dale Ellis as the proper respondent;
That the clerk shall furnish by certified mail, return receipt requested, a copy of the amended petition for writ of habeas corpus, Document 7, and this order to Respondent and the Attorney General of the State of Florida;
Respondent shall file an answer or other pleading on or before September 15, 2008;
Petitioner shall have until October 15, 2008, to file a response, if desired.