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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CHOUPIETE P CASSEUS,

Petitioner,

v. CASE NO. 1:11-cv-00004-MP -GRJ

SECRETARY, DEPARTMENT OF 

CORRECTIONS,1

Respondent.

_____________________________/

O R D E R

This matter is before the Court on Doc. 1, a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, and Doc. 2, a motion for leave to proceed as a pauper. 

Upon due consideration, the motion, Doc. 2, is GRANTED. 

The Respondent will be directed to file a response to the Petition. The response

shall be styled as an answer unless a motion to dismiss the petition, in whole or in part,

due to a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a

statute of limitations is appropriate, in which case such ground shall be asserted by

motion. See § 2254 Rule 4 and Advisory Committee Notes (Court may authorize

Respondent to address procedural bars by way of a motion to dismiss, “which may

avoid burdening the Respondent with the necessity of filing an answer on the

substantive merits of the petition.”); § 2254 Rule 5(b). If a motion to dismiss some or all

1

Because Petitioner is an inmate in the custody of the Florida Department of

Corrections (DOC), the Secretary of the DOC is the state officer who has custody of

Petitioner, and therefore is properly named as the Respondent in this case. See Rule 2,

Rules Governing Habeas Corpus Petitions under § 2254. The Clerk is directed to

correct the docket accordingly.
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of the claims on a procedural ground is filed, Respondent need not also file an answer

as to the merits of those claims only until the Court rules on the motion asserting the

procedural ground. See id. Respondent may respond to the merits of the Petition

without waiving the exhaustion requirement. See § 2254(b)(2) and § 2254(b)(3). 

Petitioner may file a reply to any of Respondent's arguments, including a motion

to dismiss, within the time set by this order, but is not required to do so. § 2254 Rule

5(e).

The Court will review the record after the answer (or other motion) and

Petitioner’s reply (if any) are filed. If it does not appear that a hearing or additional

argument is warranted, then the undersigned will make appropriate disposition of the

motion or petition. If an evidentiary hearing is warranted and permitted,2

 counsel will be

appointed. § 2254 Rule 8. Accordingly, it is

ORDERED AND ADJUDGED:

1. The Clerk shall serve a copy of the petition, Doc. 1, along with this order, on

Respondent and the Attorney General of the State of Florida via certified mail,

return receipt requested. 

2. Respondent shall file an answer or other pleading on or before April 13,

2011. If voluminous exhibits or records (such as transcripts) are submitted in

support of the answer, paper copies shall be provided to the court.

2

Section 2254(e)(2) generally bars the court from granting an evidentiary hearing

if the Petitioner failed to properly develop the facts in support of his claim in state court. 

Schriro v. Landrigan, 550 U.S. 465, 473-74 n.1 (2007). Even where not barred by the

statute, the Court has the discretion to deny a hearing if the record refutes the

allegations or otherwise precludes relief. Id. (citations omitted). 

Case No: 1:11-cv-00004-MP -GRJ
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3. Petitioner shall have until May 13, 2011, to file a reply, if desired.

DONE AND ORDERED this 13th day of January 2011.

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 1:11-cv-00004-MP -GRJ