Opinion
Civil Action No. 05-cv-01751-OES.
November 9, 2005
ORDER TO DISCHARGE ORDER TO CLARIFY AND SECOND ORDER TO RESPOND AND TO DRAW CASE TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
On October 19, 2005, the Court ordered Applicant Johnny L. Reynolds to respond and clarify whether he intended to raise an ineffective assistance of counsel claim in the instant 28 U.S.C. § 2254 Application. It was not clear whether Applicant intended to raise the ineffective assistance of counsel claim, because he did not list the claim under the claims section of the form as a claim he sought to raise.
The Court informed Applicant that because he had failed to exhaust state-court remedies with respect to the ineffective assistance of counsel claim the Application would be subject to dismissal as a mixed petition if he intended to raise the claim in the instant action. He did not indicate that the ineffective assistance of counsel claim was procedurally barred.
The Court directed Applicant to respond and inform the Court which claims he intends to raise before the Court. On October 25, Mr. Reynolds responded seeking clarification of the Court's October 19 Order. The Court then entered a Second Order to Respond on October 28. In the Second Order, the Court directed Applicant to respond and to inform the Court whether he elects to proceed in the instant case with only exhausted claims or if he desires to dismiss the instant action so that he may exhaust any unexhausted claims in state court.
Mr. Reynolds filed a Second Response on November 3, 2005. In the Second Response, he states that he believes he is barred from raising the ineffective assistance of counsel claim in state court and that he wishes to proceed with only the three claims including (1) destruction of evidence, (2) Miranda violations, and (3) improper answers. Therefore, the Order to Clarify and the Second Order to Respond will be discharged. The Application, as it pertains to the three claims listed above, and the case will be drawn to a district judge and to a magistrate judge. Accordingly, it is
ORDERED that the Court's October 19, 2005, Order to Clarify and the October 28, 2005, Second Order to Respond are discharged. It is
FURTHER ORDERED that the Application and the case shall be drawn to a district judge and to a magistrate judge. It is
FURTHER ORDERED that to the extent Applicant is requesting appointment of counsel in the Second Response, filed November 3, 2005, the request is denied as premature.