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1. 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. Vaughn, 993 F.2d 776, 780 (11 Cir. 1993). “Absent evidence th th

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 [Lingo] signed it . . .” Washington v. United States, 243 F.3d

1299, 1301 (11 Cir. 2001). In light of the foregoing and for purposes of proceedings herein, the court

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considers August 8, 2006 as the date of filing

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 R. COLLINS, et al., )

)

 Respondents. )

ORDER

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

filed by Ralph Wilson Lingo [“Lingo”], a state inmate, on August 8, 2006. In this petition, 1

Lingo challenges a conviction for intimidating a witness imposed upon him in 2004 by the

Circuit Court of Houston County, Alabama. 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 Willie R. Collins. An answer shall be filed on or before August

31, 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

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. . . 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.

(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

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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. 

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

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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. 

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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 that court

concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.”); Brown v. Head, 272 F.3d 1308, [1313] (11th

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

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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 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

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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).

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.

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

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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 14th day of August, 2006.

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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