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 a supplemental answer in response to the court’s December 7, 2006

order directing them to respond to Petitioner’s assertions that counsel’s ineffectiveness and

his denial of access to the courts constitute cause for his procedural default with regard to the

claims raised in the instant action. (Doc. No. 30.) Respondents argue that Petitioner’s

allegations of ineffective assistance of counsel and denial of access to the courts are

themselves 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). (Id.)

 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

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

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 January 30, 2007 Petitioner may file a response to the

supplemental 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 January 30, 2007 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' supplemental 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'

supplemental answer by use of affidavits or other documents, the court will, at the

Case 1:06-cv-00696-MHT-TFM Document 31 Filed 01/16/2007 Page 2 of 3
appropriate time, consider whether to expand the record to include such materials. See Rule

7, Rules Governing Section 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 claims under the fundamental miscarriage of justice exception,

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

Done, this 16th day of January 2007.

 /s/Wallace Capel, Jr. 

WALLACE CAPEL, JR.

UNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00696-MHT-TFM Document 31 Filed 01/16/2007 Page 3 of 3