Opinion
19-3088-JWL-JPO
11-07-2022
PIDY T. TIGER, Petitioner, v. SAM CLINE, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
This matter is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on May 8, 2019 by Kansas prisoner Pidy T. Tiger, who proceeds pro se and in forma pauperis. Petitioner filed an amended petition in July 2021 and, in September 2021, the Court stayed this matter pending exhaustion of state court remedies on an unexhausted ground for relief. On September 22, 2022, the Court lifted the stay and allowed Petitioner time to brief the newly exhausted ground. After receiving Petitioner's brief, the Court issued an order on October 5, 2022, directing Respondent to file his answer to the petition within 30 days. (Doc. 14.) On November 2, 2022, Respondent filed a motion for extension of time to file the answer, alleging that he had “just recently received” the relevant state court records and required additional time to review them and prepare an answer. (Doc. 15.) The Court granted the motion, making the answer due on or before January 3, 2023. (Doc. 16.)
This matter comes now before the Court on Petitioner's objection to the extension of time. (Doc. 17.) Therein, Petitioner contends that Respondent has had ample time to prepare an answer, considering that this matter was initially filed over 3 years ago and it contains mostly straightforward issues. He also argues that Respondent “has not established jurisdiction” and he asks the Court to either (1) order Respondent to show cause within 10 days why the writ should not be granted or (2) order Respondent to release Petitioner. Id.
Petitioner's objection will be overruled. Petitioner's mathematical calculations are inaccurate. Although he filed his initial petition more than 3 years ago, the state courts have only recently resolved one of the claims therein. On September 22, 2022, Petitioner advised the Court that his previously unexhausted McGirt claim was resolved by the Kansas Court of Appeals on September 9, 2022. (Doc. 11.) In that same document, Petitioner sought additional time to brief that claim to this Court, which the Court granted. The supplemental briefing was filed on October 3, 2022. (Doc. 13.)
Because the McGirt claim is one of Petitioner's asserted bases for federal habeas relief, Respondent is required to present in the answer an analysis of that claim, which he could not do until Petitioner submitted the supplemental briefing setting forth his arguments on the claim. Moreover, Respondent was ordered to obtain the state court records related to the recent disposition of that claim, which requires time. (See Doc. 14, p. 2 (ordering Respondent to furnish to the Court “the records, or copies thereof, of “subsequent postconviction proceedings”).) Finally, Respondent had no responsibility to begin preparing an answer to the petition until October 5, 2022, when the Court ordered him to show cause why the writ should not be granted. See Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts (“The respondent is not required to answer the petition unless a judge so orders.”). Petitioner's assertion that Respondent “intentionally neglected to” gather and review the record until recently has no apparent basis in fact.
The Court has considered Petitioner's objections to the extension of time granted Respondent in this matter and, for the reasons stated above, concludes that granting the extension was not erroneous, nor was it contrary to law. See Fed.R.Civ.P. 72(a) (governing objections to a magistrate judge's resolution of a referred nondispositive matter). Thus, Petitioner's objection to the Court's order granting Respondent until January 3, 2023 to file his answer is overruled.
IT IS THEREFORE ORDERED that Petitioner's objections to the extension of time (Doc. 17) are overruled.
IT IS SO ORDERED.