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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TERRY LYNN BELL,

Petitioner,

vs. Case No. 3:11cv299/MCR/CJK

EDWIN G. BUSS,

Respondent.

________________________________________________________________

ORDER

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

§ 2254. (Doc. 1) 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. Rules Governing § 2254 Cases, Rule 8(a). The answer

shall be filed pursuant to Rule 5 of the Rules Governing § 2254 Cases, 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 provided by Rule 5, the answer shall

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respond to the allegations of the petition; state whether any claim in the petition is

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barred; attach such portions of the transcripts as the answering party deems relevant;

and attach copies of state appellate court briefs and opinions. See Rules Governing

§ 2254 Cases, Rule 5(b)-(d). If respondent’s answer requires the submission of 1

materials outside the state court record, he shall file a motion to expand the record

pursuant to Rule 7. See Rules Governing § 2254 Cases, Rule 7. 

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). Rules

Governing § 2254 Cases, Rule 5; 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

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

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respondent shall also provide a courtesy copy in paper format. The exhibits are part of the answer. 

Fed. R. Civ. P. 10(c); see also Rules Governing § 2254 Cases, Rule 5. Therefore, respondent is

required to serve a copy of the exhibits upon petitioner. Fed. R. Civ. P. 5(a). 

Case No: 3:11cv299/MCR/CJK

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determine whether an evidentiary hearing isrequired. 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. 28

U.S.C. §§ 2243, 2254.

Accordingly, it is ORDERED:

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

attachments to said petition), along with a copy of this order to respondent and the

Attorney General of the State of Florida. 

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 26th day of July, 2011.

/s/Charles J. Kahn, Jr. 

CHARLES KAHN

UNITEDSTATESMAGISTRATEJUDGE

Case No: 3:11cv299/MCR/CJK

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