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1. Heard initially filed his case in the United States District Court for the Southern District of Alabama at

which time the Clerk entered the petition as "filed" on May 11, 2006. The law is well settled that a pro se

inmate’s petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487

U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11 Cir. 1999); Garvey v.

th

Vaughn, 993 F.2d 776, 780 (11 Cir. 1993). It is clear that Heard delivered his petition to prison officials for th

mailing prior to May 11, 2006. The in forma pauperis affidavit simultaneously submitted with the petition

contains a certified date of execution by Heard of April 26, 2006. Thus, these documents remained in Heard'

possession as of april 26, 2006 and this is therefore the earliest date he could have presented them for mailing.

"Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the

instant petition] was delivered to prison authorities the day [Heard] signed [the relevant documents.]"

Washington v. United States, 243 F.3d 1299, 1301 (11 Cir. 2001). In light of the foregoing and for purposes

th

of proceedings herein, the court at this time considers April 26, 2006 as the date of filing. If the respondents

obtain evidence that Heard submitted his habeas petition to prison officials for mailing after April 26, 2006,

they may present such evidence to the court in their answer. 

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

PATRICK O'NEAL HEARD, #165216, )

)

 Petitioner, )

)

v. ) CIVIL ACTION NO. 3:06-CV-691-WHA

)

SYLVESTER FOLKS, et al., )

)

 Respondents. )

ORDER

This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief

filed by Patrick O'Neal Heard [“Heard”], a state inmate, on April 26, 2006. In this 1

petition, Heard challenges a conviction for third degree burglary imposed upon him by the

Circuit Court of chambers County, Alabama on December 20, 2004. The Clerk is

DIRECTED to mail a copy of the petition and this order to the Attorney General of the

State of Alabama and cause a copy of the same to be served upon warden Sylvester Folks.

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An answer shall be filed on or before August 28, 2006. In filing their answer, the

respondents should comply with the provisions of Rule 5 of the rules governing § 2254

cases in the district courts which requires, in pertinent part, that the answer

. . . indicate what transcripts (of pretrial,

trial sentencing, and post-conviction 

proceedings) are available, when they can be

furnished, and also what proceedings have

been recorded and not transcribed.

The respondents should attach to their answer such portions of the transcript which are

relevant and necessary to a disposition of the issues presented by the petitioner.

Additionally, the respondents should make specific reference to 28 U.S.C. § 2244(d) which

provides that: 

(1) A 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court. The limitation period shall run

from the latest of--

(A) the date on which the judgment became final

by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by

the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been

discovered through the exercise of due diligence.

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(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

The respondents are advised that the answer should contain a procedural history

from which the court can determine the applicability of 28 U.S.C. § 2244(d). In so doing,

the respondents shall provide the court with copies of documents indicating the disposition

of the case in the state appellate court, including but not limited to the case action summary

maintained by the trial court, all state court appellate decisions, the docket sheet(s)

indicating the dates of such decisions, and copies of the briefs filed in the state court. The

respondents shall also inform the court of whether this is the first habeas petition filed

by petitioner challenging the conviction which is the basis for the instant petition.

Additionally, if the petitioner has a filed previous petition challenging the conviction

underlying the present petition, the respondents shall provide the court with the

disposition of such petition. This information is relevant to the disposition of this case as

28 U.S.C. § 2244(b)(3)(A) requires that "[b]efore a second or successive application

permitted by this section is filed in the district court, the applicant shall move in the

appropriate court of appeals for an order authorizing the district court to consider the

application." However, the respondents are advised that a prior petition dismissed for

failure to exhaust state remedies does not render a subsequent petition successive. 

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Section 2254(d)(1) of the AEDPA significantly “modifies the role of federal habeas

courts in reviewing petitions filed by state prisoners.” Williams v. Taylor, 529 U.S. 362,

403, 120 S.Ct. 1495, 1518 (2000). In sum, § 2254(d)(1) places new constraints on the

power of a federal court to grant a state prisoner’s application for habeas corpus relief with

respect to those claims adjudicated on the merits in state court. Specifically, the statute

allows this court to grant a writ of habeas corpus only “if the relevant state-court decision

was either (1) ‘contrary to ... clearly established Federal law, as determined by the Supreme

Court of the United States,’ or (2) ‘involved an unreasonable application of ... clearly

established Federal law, as determined by the Supreme Court of the United States.’

(Emphases added.)” Williams v. Taylor, 529 U.S. at 404-405, 120 S.Ct. at 1519. “Under

§ 2254(d)(1) and the Williams decision, [a federal court] can grant relief only if the state

court decision denying relief is ‘contrary to’ clearly established federal law or is an

‘unreasonable application’ of federal law.” Brown v. Head, 272 F.3d 1308, 1313 (11 Cir. th

2001). In the vast majority of cases, a federal district court will be faced with the

contention that the state court unreasonably applied federal law. 

In determining whether the state court’s decision is an

unreasonable application of the law set out in [applicable]

Supreme Court decisions, we need not decide whether we

would have reached the same result as the state court if we had

been deciding the issue in the first instance. Instead, we decide

only whether the state court’s decision of the issue is

objectively unreasonably. See Williams v. Taylor, 529 U.S.

362, 411, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000)

(“Under §2254(d)(1)’s ‘unreasonable application’ clause, then,

a federal habeas court may not issue the writ simply because

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that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must

also be unreasonable.”); Brown v. Head, 272 F.3d 1308, [1313]

(11 Cir. 2001)(“It is the objective reasonableness, not the th

correctness per se, of the state court decision that we are to

decide.”).

Heard v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1256 (11 Cir. 2002). th

Additionally, the statute makes it clear that a federal court cannot grant relief with respect

to claims adjudicated on the merits by the state courts “unless the adjudication of the claim

. . . resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). 

Thus, if the respondents contend that this court is precluded from granting

habeas relief because claims raised by the petitioner have been properly adjudicated

by the state courts in decisions neither contrary to nor an unreasonable application

of clearly established Supreme Court precedent, the respondents must identify to this

court the decision of the state court on each claim. Moreover, if the petitioner has not

raised his federal claims in the state courts and has an available state court remedy wherein

he may present such claims, the respondents shall identify the remedy available to

petitioner. The court deems such action necessary as the law requires that an application

for writ of habeas corpus filed by "a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that the applicant has exhausted the

remedies available in the courts of the State . . ." 28 U.S.C. § 2254(1)(b)(1)(A). In

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addition, if this court is barred from reviewing a petitioner’s claims due to his failure

to properly present any of the federal claims to the state courts, the respondents shall

identify the defaulted claim(s) and provide a basis for the procedural default. 

Where the petitioner alleges ineffective assistance of counsel or insufficiency of the

evidence and these claims must be addressed on their merits, the entire trial record must

be filed. The entire trial record should also be filed if the respondents assert that a ruling

of the trial court is entitled to a presumption of correctness or if they defend on grounds that

a particular ruling did not render the trial "fundamentally unfair" or that a particular error

is "harmless error." The Magistrate Judge recognizes that the burden of producing the state

court record is sometimes unduly onerous. However, it is clear that pursuant to the

procedure governing habeas corpus actions, "[t]he obligation to come forward with the state

court record is squarely upon the Respondent, not upon the petitioner." Bundy v.

WainHeard, 808 F.2d 1410, 1415 (11th Cir. 1987).

The parties are advised that no motion for summary judgment, motion to

dismiss or any other dispositive motions addressed to the petition may be filed by any

party without permission of the court. If any pleading denominated as a motion for

summary judgment, motion to dismiss or other dispositive motion is sent to the court, the

court shall not file or otherwise treat the pleading as a dispositive motion until and unless

further order of the court. The petitioner is cautioned that all amendments to the

petition should be accompanied by a motion to amend and must be filed within ninety

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(90) days from the date of this order.

The Federal Rules of Civil Procedure require that the petitioner mail to the lawyer

for the respondents a true copy of anything which is sent to the court. Consequently, the

petitioner is advised that he must mail to the Attorney General for the State of Alabama a

true copy of anything which he sends to the court. Anything sent to the court should

specifically state that it has been sent to the Attorney General for the State of Alabama.

Failure to comply with the directives of this order may result in delaying resolution of this

case. Moreover, the petitioner is specifically CAUTIONED that his failure to file

pleadings in conformity with the Federal Rules of Civil Procedure and/or the directives

contained in this order will result in such pleadings not being accepted for filing. The

CLERK is DIRECTED to not accept for filing any pleadings submitted by the petitioner

which are not in compliance with either the Federal Rules of Civil Procedure or the

directives contained in this order.

Done this 10th day of August, 2006.

/s/ Vanzetta Penn McPherson

UNITED STATES MAGISTRATE JUDGE

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