UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND/ODESSA DIVISION

DUSTY HERNANDEZ

vs.

DIRECTOR, TDCJ-CID1

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NO: MO:20-CV-00142-DC 

ORDER DIRECTING RESPONDENT TO FILE ANSWER

On this day, the Court considered Petitioner Dusty Hernandez’s (“Petitioner”) Application for 

Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. §2254 in the abovecaptioned case.

In accordance with Rules 4 and 5 of the Rules Governing §2254 Cases, the Clerk shall serve 

Respondent with a copy of Petitioner’s 28 U.S.C. §2254 Habeas Corpus Application and 

Memorandum in Support [docket number 13], and direct Respondent to file an answer or other 

responsive pleading.

Accordingly, IT IS ORDERED:

1. Service on Respondent: The Clerk shall serve the §2254 Application and this Order 

electronically via CM/ECF on the Texas Attorney General and counsel for the Director, directed 

to the attention of Edward Marshall, Assistant Attorney General, Chief of the Criminal Appeals 

Division and Laura Haney. 

2. Respondent’s Answer: Respondent shall file an answer no later than November 6, 2020. 

Respondent’s answer shall conform to Rule 5 of the Rules Governing §2254 Cases and Fed. 

R. Civ. P. 12.

3. Service on Petitioner: Respondent shall serve Petitioner with a copy of the answer as required 

by Fed. R. Civ. P. 5(b).

4. Exhaustion and Procedural Bar Issues: If Respondent asserts Petitioner has not exhausted 

available state remedies, Respondent shall explain the state remedies still available to Petitioner 

with regard to each unexhausted claim. If Respondent asserts Petitioner has procedurally 

defaulted on any claim, Respondent shall identify which of Petitioner’s claims Respondent 

contends are procedurally barred.

5. Limitations: Respondent shall address whether the Application was filed within the one-year 

limitations period of 28 U.S.C. §2244(d).

1 Lorie Davis is the Director of the Texas Department of Criminal Justice—Correctional Institutions Division 

(TDCJ-CID) and is the proper Respondent in this case. The Clerk shall substitute Lorie Davis for the unnamed 

Director. Fed. R. Civ. P. 25(d); Rule 2(a), Rules Governing §2254 Cases.

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6. Abuse of the Writ: If Respondent asserts abuse of the writ as a defense, Respondent shall 

identify which of Petitioner’s claims were included or could have been included in a prior federal 

habeas corpus Application.

7. Petitioner’s Reply: Local Court Rule CV-7(e) provides that a party opposing a motion must file 

a response to the motion within fourteen (14) days of service of that motion. Any failure to file 

such a timely response may be construed by the Court as a lack of opposition to the motion and 

result in the Court granting the motion as unopposed. Additionally, if Petitioner fails to respond 

in a timely manner to an opposing party’s motion, the Court may dismiss Petitioner’s case for 

want of prosecution. Pursuant to Local Court Rule CV-7(f), Respondent may file a reply in 

support of a motion, and any reply shall be filed within 7 days of the service of the response, but 

the Court need not wait for the reply before ruling on the motion. Any reply shall be limited to 10 

pages, unless otherwise authorized by the Court. Absent leave of the Court, no further 

submissions on the motion are allowed by either side. 

8. Duty to Serve Opposing Counsel: Both the Federal Rules of Civil Procedure and this Court’s 

Local Rules require that all documents submitted to the Clerk of this Court for filing must be 

served on the opposing party through service on opposing counsel. The Court will disregard any 

pleading, motion, or other document submitted for filing that fails to contain the “certificate of 

service” required under Federal Rule of Civil Procedure 5(d). The “certificate of service” must 

state the date and method (e.g., hand delivery, certified mail or regular mail) by which Petitioner 

sent a copy of that pleading, motion or document to Respondent’s counsel of record.

9. Duty to Inform Court of Change of Address: Petitioner shall immediately notify the Clerk and 

each Respondent’s counsel in writing of any change of address. He shall caption any such 

advisories as “Notice to the Court of Change of Address” and not include any motions or other 

matters in such notice. Failure by Petitioner to furnish the Court and Respondent with a notice of 

a change of address will be interpreted by the Court as a failure to prosecute may result in the 

Court recommending dismissal of the Application.

10. State Court Records: Within thirty (30) days after Respondent files an answer or other 

responsive pleading, Respondent shall file the State court records.

It is so ORDERED.

SIGNED this 6th day of August, 2020.

DAVID COUNTS

UNITED STATES DISTRICT JUDGE

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