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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HENRY SORGE,

Petitioner,

vs. CASE NO.: 3:10cv114/LAC/MD

WALTER A. MCNEIL,

Respondent.

_____________________________________________________________________

ORDER

Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

(doc. 1), and supporting accompanying memorandum (doc. 2). The appropriate number

of service copies have been filed with the court, and petitioner has paid the filing fee.

Respondent will be required to file an answer so the court may determine whether

an evidentiary hearing is required or, if not required, may dispose of the petition as justice

requires. Rule 8(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. The answer

shall be filed pursuant to § 2254 Rule 5 and shall be styled as an answer rather than as

a motion to dismiss or for summary judgment, unless it appears to the respondent that a

motion to dismiss based on a procedural defect such as failure to exhaust or the statute

of limitations is appropriate. McBride v. Sharpe, 25 F.3d 962, 970 (11 Cir. 1994). As th

provided by Rule 5, the answer shall respond to the allegations of the petition; state

whether any claim in the petition is barred; attach such portions of the transcripts as the

answering party deems relevant; and attach copies of state appellate court briefs and

opinions. See Rule 5(b)-(d), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. If 1

respondent’s answer requires the submission of materials outside the state court record,

All exhibits shall be filed electronically. If the exhibits exceed 200 pages in length, respondent shall

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also provide a courtesy copy in paper format. The exhibits are part of the answer. Fed. R. Civ. P. 10(c); see

also Rule 5, Rules Governing Section 2254 Cases in the United States District Courts. Therefore, respondent

is required to serve a copy of the exhibits upon petitioner. Fed. R. Civ. P. 5(a).
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he shall file a motion to expand the record pursuant to Rule 7. See Rule 7, Rules

Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 

If respondent raises the defense of failure to exhaust as to any claim, he may file

an appropriate motion and shall set forth as to each such claim the appropriate manner of

raising the claim under Florida law, whether petitioner has sought such relief, and, if not,

what further relief is available for purposes of §2254(c). Rule 5, Rules Governing § 2254

Cases, 28 U.S.C. foll. § 2254; 28 U.S.C. §2254(b) and (c). If further relief is not available

in the state courts, the appropriate defense is procedural default (not failure to exhaust),

which should be asserted in respondent’s answer (not in a motion to dismiss). If an

exhaustion argument is raised by motion, respondent may await a ruling on that defense

before filing an answer on the merits. Alternatively, respondent may proceed directly to the

merits. See § 2254 (b)(2) (the application may be denied on the merits notwithstanding

the failure to exhaust state remedies) and § 2254(b)(3) (the exhaustion requirement is not

deemed to be waived unless expressly waived by counsel for the state), as amended April

24, 1996. 

The answer shall be filed within ninety (90) days from the date this order is

docketed. Thereafter, petitioner will be given the opportunity to file a reply. Upon receipt

of the answer and the petitioner’s reply, the court will review the file to determine whether

an evidentiary hearing is required. An evidentiary hearing will not be required unless

consideration of disputed evidence outside the state court record appears necessary to the

court. If it is determined that an evidentiary hearing is not required, the court will make

such disposition of the petition as justice requires pursuant to §2254 Rule 8(a).

Accordingly, it is ORDERED:

1. The Clerk is directed to furnish copies of the petition (including any

attachments), memorandum, and this order to respondent and the Attorney General of the

State of Florida. 

Case No: 3:10cv114/LAC/MD
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2. Respondent shall have ninety (90) days from the date this order is entered

on the docket in which to file an answer as directed by this order.

DONE AND ORDERED this 13 day of May, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 3:10cv114/LAC/MD