Opinion
Case No. 3:13-cv-330
2013-09-30
SHELDON SMITH, Petitioner, v. NORM ROBISNON, Warden, Chillicothe Correctional Institution, Respondent.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER
This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Petitioner Sheldon Smith who seeks relief from his conviction in the Greene County Common Pleas Court on various drug offenses and consequent imprisonment. The case has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. '636(b) and the Dayton General Order of Assignment and Reference.
Procedural History
After Smith's motion to suppress was denied, he pled no contest and the Greene County Common Pleas Court convicted him and imposed an aggregate sentence of twenty years imprisonment. The conviction was affirmed on appeal. State v. Smith, 2010 Ohio 6229, 2010 Ohio App. LEXIS 5234 (2nd Dist. Dec. 17, 2010). The Ohio Supreme Court declined jurisdiction over an appeal. State v. Smith, 128 Ohio St. 3d 1460 (2011). Smith filed a petition for post- conviction relief which the trial court denied. That denial was affirmed on appeal. State v. Smith, 2012 Ohio 113, 2012 Ohio App. LEXIS 83 (2nd Dist. Jan. 13, 2012). The Ohio Supreme Court again declined jurisdiction. State v. Smith, 2012 Ohio 4381 (2012). The instant habeas petition followed.
Order for Answer
Upon preliminary consideration pursuant to Rule 4 of the Rules Governing '2254 Cases, the Court finds that it does not plainly appear from the face of the Petition and any exhibits attached thereto that the Petitioner is not entitled to relief in this Court. Accordingly, it is hereby ORDERED that Respondent shall, not later than November 15, 2013, file an answer conforming to the requirements of Rule 5 of the Rules Governing '2254 Cases. Specifically, said answer shall respond to each allegation made in the Petition, raise any affirmative defense relied on by Respondent, and state whether, from Respondent's perspective, any claim in the Petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.
Before filing the answer, the Respondent shall file those portions of the state court record needed to adjudicate this case, accompanied by an index of the documents in the record. When the record is filed electronically, the Court's CM/ECF filing system will affix a unique PageID number to each page of the record, displayed in the upper right-hand corner of the page. All papers filed in the case thereafter, by either party, including the answer and the exhibit index, shall include record references to the PageID number. Prior to filing the state court record, the Warden's counsel shall ensure that any borders on parts of the record (typically, court reporter transcripts) do not obscure the PageID number when the page is filed.
As required by Fed. R. Civ. P. 5, a complete copy of the answer and state court record with the PageID numbers must be served on Petitioner at the time of filing.
Petitioner may, not later than twenty-one days after the answer is filed, file and serve a reply to the answer.
The Clerk is ordered to serve the Petition on Respondent and the Attorney General of Ohio, c/o Assistant Attorney General M. Scott Criss, Section Coordinator, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215.
Michael R. Merz
United States Magistrate Judge