Opinion
Civil Action No. 3:03-CV-666-F (WO).
October 18, 2005
ORDER
Respondents filed a supplemental answer on October 3, 2005 in accordance with the provisions of Rule 5, Rules Governing Section 2254 Cases in the United States District Courts. (Doc. No. 9.) They contend therein that Petitioner's claims regarding an excessive sentence and illegal arrest are due to be denied because they provide no basis for relief. Specifically, Respondents argue that these claims are procedurally barred from review by this court because the last state court to address these claims found them procedurally defaulted because they could have been, but were not, raised at trial or on appeal. See Harris v. Reed, 489 U.S. 255 (1989); Atkins v. Singletary, 965 F.2d 952, 956 (11th Cir. 1992).
A procedural default bars consideration of the merits of a claim unless Petitioner can establish "cause" for the failure to follow the state's procedural rules and show "prejudice" resulting from this failure. See Wainwright v. Sykes, 433 U.S. 72 (1977). However, even if Petitioner fails to show cause and prejudice, a procedural default will not preclude a federal court from considering a habeas petitioner's federal constitutional claim where Petitioner is able to show that the court's failure to address his claim would result in a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 320 (1995); Murray v. Carrier, 477 U.S. 478 (1986). The miscarriage of justice exception allows federal courts to address procedurally defaulted claims if Petitioner shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496.
Accordingly, it is
ORDERED that within twenty-one (21) days of the filing date of this order Petitioner may file a response to the answer filed by Respondents. Any pleadings, documents or evidence filed after this date will not be considered by the court except in exceptional circumstances. Petitioner is advised that at any time after the time for filing a response has expired, the court shall "determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the [court] shall make such disposition of the petition as justice shall require." Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner is instructed that when responding to Respondents' answer he may file sworn affidavits or other documents in support of his claims. Affidavits should set forth specific facts which demonstrate that Petitioner is entitled to relief on the grounds presented in the habeas corp us petition. If documents which have not previously been filed with the court are referred to in the affidavits, sworn or certified copies of those papers must be attached to the affidavits or served with them. When Petitioner attacks Respondents' answer by use of affidavits or other documents, the court will, at the appropriate time, consider whether to expand the record to include such materials. See Rule 7, Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner is cautioned that in responding to Respondent s' assertion that his claims of an excessive sentence and illegal arrest are procedurally defaulted he must state specific reasons why he failed to comply with the state's procedural rules or otherwise did not present or pursue these claims in state court either at the trial court level, on appeal, or in available post-conviction proceedings. Petitioner is advised that the reasons present ed must be legally sufficient and that the facts surrounding or relating to the reasons for the failure must be stat ed with specificity. Moreover, if Petitioner claims that this court should address the procedurally defaulted claims under the fundamental miscarriage of justice exception, he must show specific reasons for the application of this exception.