IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

 _______________________________

HOWARD GLENN TOOLE, #C 917683 *

Petitioner, *

 v. * 1:06-CV-696-MHT

 (WO)

JAMES MCDONOUGH, et al., * 

Respondents. *

 _______________________________

ORDER

Respondents filed an answer in accordance with the provisions of Rule 5, Rules

Governing Section 2254 Cases in the United States District Courts, in which they contend

that the present habeas corpus petition is due to be denied because the claims raised therein

provide no basis for relief. Specifically, Respondents argue that Petitioner’s claims for relief

are procedurally defaulted as they were not presented to the state courts in accordance with

the state’s procedural rules. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Collier

v. Jones, 901 F.2d 770, 773 (11th Cir. 1990); Presnell v. Kemp, 835 F.2d 1567 (11th Cir.

1988). (Doc. No. 23.)

 A procedural default bars consideration of the merits of a claim unless Petitioner can

establish "cause" for the failure to follow the state's procedural rules and show "prejudice"

resulting from this failure. See Wainwright v. Sykes, 433 U.S. 72 (1977). However, even if

Petitioner fails to show cause and prejudice, a procedural default will not preclude a federal

court from considering a habeas petitioner's federal constitutional claim where Petitioner is

Case 1:06-cv-00696-MHT-TFM Document 24 Filed 11/08/2006 Page 1 of 3
able to show that the court's failure to address his claim would result in a "fundamental

miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 320 (1995); Murray v. Carrier, 477

U.S. 478 (1986). The miscarriage of justice exception allows federal courts to address

procedurally defaulted claims if the petitioner shows that "a constitutional violation has

probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at

496. 

 Accordingly, it is

ORDERED that on or before November 28, 2006 Petitioner may file a response to the

answer filed by Respondents. Any pleadings, documents or evidence filed after this date will

not be considered by the court except in exceptional circumstances. Petitioner is advised that

at any time after November 28, 2006 the court shall "determine whether an evidentiary

hearing is required. If it appears that an evidentiary hearing is not required, the [court] shall

make such disposition of the petition as justice shall require." Rule 8(a), Rules Governing

Section 2254 Cases in the United States District Courts. 

Petitioner is instructed that when responding to Respondents' answer he may file

sworn affidavits or other documents in support of his claims. Affidavits should set forth

specific facts which demonstrate that Petitioner is entitled to relief on the grounds presented

in the habeas corpus petition. If documents which have not previously been filed with the

court are referred to in the affidavits, sworn or certified copies of those papers must be

attached to the affidavits or served with them. When Petitioner attacks Respondents' answer

by use of affidavits or other documents, the court will, at the appropriate time, consider

whether to expand the record to include such materials. See Rule 7, Rules Governing Section

Case 1:06-cv-00696-MHT-TFM Document 24 Filed 11/08/2006 Page 2 of 3
2254 Cases in the United States District Courts. 

Petitioner is cautioned that in responding to Respondents' assertion that each of his

claims for relief are procedurally defaulted he must state specific reasons why he failed to

comply with the state's procedural rules or otherwise did not present or pursue these claims

at the appropriate times in state court either at the trial court level, on appeal or other

available post-conviction proceedings. Petitioner is advised that the reasons presented must

be legally sufficient and that the facts surrounding or relating to the reasons for the failure

must be stated with specificity. Moreover, if Petitioner claims that this court should address

the procedurally defaulted claim under the fundamental miscarriage of justice exception,

Petitioner must show specific reasons for the application of this exception.

Done, this 8th day of November 2006.

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00696-MHT-TFM Document 24 Filed 11/08/2006 Page 3 of 3