Summary
finding failure to rebut the presumption that the prisoner's document was filed on the date specified in the certificate of service and deeming the petition timely filed
Summary of this case from Flowers v. Sec'yOpinion
CASE NO. 4:08cv175-SPM/WCS.
March 31, 2009
ORDER
THIS CAUSE comes before the Court upon the Magistrate Judge's report and recommendation (doc. 9) dated February 23, 2008. Each party was furnished a copy and Respondent filed an objection (doc. 10). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the report and recommendation should be adopted. As stated in the report and recommendation, there is no support under Florida law that compliance with § 33-210.102(8) is necessary for application of the mailbox rule in Hagg andThompson to Petitioner's 3.800(a) motion. Accordingly, it is
ORDERED AND ADJUDGED:
1. The report and recommendation (doc. 9) is adopted and incorporated by reference in this order.
2. The motion to dismiss (doc. 5) is denied.
3. Respondent shall have up to and including May 1, 2009, to file an answer to the petition. Petitioner shall have 30 days from receipt of the answer to file a reply, if any.
DONE AND ORDERED.