Opinion
NO. 3:09-cv-104
03-07-2012
JAMES DELLINGER, Petitioner, v. ROLAND COLSON, Warden, Respondent.
VARLAN/SHIRLEY
Death Penalty
ORDER
This matter is before the Court on Petitioner's motions requesting to exceed the 25-page limitation on briefs (Doc. 62); expand the record (Doc. 64); and file a document under seal (Doc. 65), and Respondent's motion requesting an extension of time in which to file a reply to Petitioner's response to his summary judgment motion (Doc. 69). The motions will be addressed in the order in which they were filed.
I. Motion to Exceed Page Limitation
Petitioner requests permission to exceed the 25-page limitation on briefs to which Respondent's counsel does not oppose (Doc. 62). Petitioner has filed a two-hundred and forty-two (242) page brief (Doc. 63) in response to Respondent's 120 page response/motion for summary judgment (Doc. 34). Petitioner's decision to respond to Respondent's summary judgment motion in a different organizational format than Respondent's summary judgment motion will require the unnecessary expenditure of time and judicial resources, and could cause confusion in ruling on the various claims.
Therefore, Petitioner is hereby ORDERED to reorganize his brief to address each claim, by the same number and title, and in the same sequence and format, as it is raised in Respondent's summary judgment motion. In addition, Petitioner's brief SHALL include a table of contents. The table of contents SHALL list each claim by the same number and title, and in the same sequence in which the claim is raised in Respondent's summary judgment motion and in Petitioner's reorganized brief. In addition, the table of contents SHALL identify the page numbers where the discussion of each claim is raised in Petitioner's responsive brief. Petitioner is ORDERED to file the reorganized brief and table of contents within fifteen (15) days from the date of this Order. Petitioner and Respondent SHALL hereafter, continue to comport their filings to the same format and sequence as addressed in the filing to which they are responding.
Accordingly, the Court GRANTS Petitioner's motion to exceed the 25-page limitation on briefs pending Petitioner's submission of his reorganized brief and table of contents within fifteen (15) days from the date of this Order (Doc. 62).
The Court requests Petitioner to give serious consideration to reducing the length of his response to the motion for summary judgment to no more than 200 pages, but in any event, the reorganized response SHALL not exceed 242 pages.
II. Motion to Expand the Record
Petitioner requests the Court to either order the Clerk of this Court to duplicate and supplement the record in this case with the entire state court record in the Sevier County case or direct Respondent to file a complete copy of the state court record in the Sevier County case with the Court Clerk in this case (Doc. 64). Respondent opposes the motion arguing that the claim which the record supports is procedurally defaulted. Petitioner maintains that even if the double jeopardy claim is procedurally defaulted, the merits of the double jeopardy claim must be considered because they establish Petitioner is actually innocent of the death penalty (Doc. 64).
Accordingly, the Court GRANTS the motion and ORDERS Respondent to file a complete copy of the state court record in the Sevier County, Tennessee case and to serve Petitioner's counsel with a copy. III. Motion to File Document Ex Parte and Under Seal
To the extent Petitioner seeks the Court to review the entire record of the Sevier County, Tennessee case, such review will generally be limited to those portions of the record specifically referenced by Petitioner or Respondent in support of his argument(s).
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Also before the Court is Petitioner's motion to file a motion ex parte and under seal (Doc. 65) and the proposed sealed motion (Doc. 66). Petitioner requests to file the motion ex parte and under seal as it includes attorney-client relationship matters and matters governed by the Rules of Professional Conduct (Doc. 65). Accordingly, the motion to file ex parte and under seal is GRANTED at this time pending further order of the Court (Doc. 65).
It is hereby, ORDERED that the motion be filed EX PARTE and UNDER SEAL pending further order of the Court (Doc. 66). Local Rule 26.2. The motion to seal (Doc. 65) and this Order SHALL remain unsealed and in the public record.
IV. Respondent's Motion for Extension of Time to Reply to Petitioner's Summary Judgment Response
Finally, before the Court is Respondent's motion requesting an extension of time in which to file a reply to Petitioner's response to his summary judgment motion (Doc. 69). The motion is GRANTED to the extent that Petitioner SHALL file his reply within fifteen (15) days from the date on which Petitioner files his reorganized response (Doc. 69).
SO ORDERED.
ENTER:
C. Clifford Shirley , Jr.
United States Magistrate Judge