IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RALPH WILSON LINGO, )

)

 Petitioner, )

)

v. ) CIVIL ACTION NO. 1:06-CV-703-MHT

)

WILLIE COLLINS, et al., )

)

 Respondents. )

ORDER ON MOTION

On October 17, 2006, the petitioner, Ralph Wilson Lingo ["Lingo"], filed an

amendment to his original habeas petition in which he (i) substitutes his current custodian

for his previous custodian, (ii) clarifies the original claims on which he seeks to proceed,

(iii) dismisses several claims raised in the original petition, and (iv) asserts additional

claims for habeas relief. In light of the foregoing and in the interest of judicial economy,

the court concludes that this document should be construed as an amended petition.

Accordingly, it is

ORDERED that:

1. This cause of action shall henceforth proceed only on the claims presented in the

amended petition. 

2. Sheriff Herbie Johnson be substituted for warden Willie Collins as a respondent

in this cause of action.

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 1 of 8
2

The Clerk is DIRECTED to mail a copy of the amended petition and this order to

the Attorney General of the State of Alabama and cause a copy of the same to be served

upon Sheriff Herbie Johnson. An answer shall be filed addressing the amended petition

on or before November 8, 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;

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 2 of 8
3

(C) the date on which the constitutional right

asserted wasinitially 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.

(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 thisisthe 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

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 3 of 8
4

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. 

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. 

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 4 of 8
5

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 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 th

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

decide.”).

Lingo 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

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 5 of 8
6

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

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.

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

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 6 of 8
7

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

(90) days from the date of this order. Additionally, no further amendments will be

allowed by the court unless the petitioner establishes extraordinary circumstances

warranting such action.

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

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 7 of 8
8

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 18th day of October, 2006.

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00703-MHT-CSC Document 17 Filed 10/18/2006 Page 8 of 8