The petition was originally filed in the United States District Court for the Northern District of 1

Florida on June 13, 2006 and subsequently transferred to and received in this court on August 10, 2006.

Although the transferring court stamped the petition "filed" on June 13, 2006, it is clear that the petition

was presented to correctional personnel for mailing prior to such date. 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 th

(11 Cir. 1993). In light of the foregoing, the court construes June 8, 2006 as the date of filing. th

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 _______________________________

HOWARD GLENN TOOLE, #C 917683 *

Petitioner, *

 v. * 2:06-CV-714-MHT

 (WO)

JAMES MCDONOUGH, et al., * 

Respondents. *

 _______________________________

ORDER

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

filed by Petitioner Howard Toole on June 8, 2006. In this petition, Petitioner challenges his 1

convictions on two counts of first degree robbery entered against him by the Circuit Court

for Pike County, Alabama, on May 10, 2005. 

The Clerk is DIRECTED to mail a copy of the amended petition filed September 13,

2006, including all attachments (Doc. No. 6), and this order to the Attorney General of the

State of Alabama and cause a copy of the same to be served upon Warden Sam Culpepper.

An answer shall be filed within 20 days of service on the Attorney General. In filing their

answer, 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

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 1 of 6
28 U.SC. § 2244(d) provides: 2

(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 postconviction 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.

. . . indicate what transcripts (of pretrial, trial sentencing, and 

post-conviction proceedings) are available, when they can be

furnished, and also what proceedings haven been recorded and 

not transcribed.

Rule 5 also requires that Respondents attach to their answer such portions of the transcript

as they deem relevant. Additionally, Respondents should make specific reference to 28

U.S.C. § 2244(d)(1).2

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,

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. Respondents are

cautioned that if they fail to assert the timeliness issue it may be waived. Respondents

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 2 of 6
This information is relevant to the disposition of this case as 28 U.S.C. § 2244(b)(3)(A) requires

3

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." A prior petition dismissed for failure to exhaust state remedies, however, does not

render a subsequent petition successive. 

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. If Petitioner has

filed a previous federal habeas application challenging the conviction underlying the present

petition, Respondents shall provide the court with the disposition of such petition.3

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

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

contention that the state court unreasonably applied federal law. 

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 3 of 6
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.”).

Wright 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). 

If Respondents contend, therefore, that this court is precluded from granting

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

state courts in accordance with clearly established Supreme Court precedent,

Respondents must identify to this court the Supreme Court authority on which the state

court relied in adjudicating Petitioner’s claims and the decision of the state court on

each claim. Moreover, if Petitioner has not raised his federal claims in the state courts and

has an available state court remedy wherein he may present such claims, Respondents shall

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 4 of 6
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,

Respondents shall identify the defaulted claim(s) and provide a basis for the procedural

default. 

Where 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 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

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 5 of 6
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. 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 Petitioner mail to the lawyer for

Respondents a true copy of anything which is sent to the court. Consequently, 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, 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 of Court IS DIRECTED to not accept for filing any pleadings submitted

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

or the directives contained in this order.

Done this day 15th day of September 2006.

/s/ Vanzetta Penn McPherson

VANZETTA PENN MCPHERSON

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00714-MHT-WC Document 7 Filed 09/15/2006 Page 6 of 6