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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RICHARD L. JOHNSON,

Petitioner,

v. CASE NO. 4:10-cv-0498-MP-GRJ

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondents.

_____________________________/

O R D E R

This case is before the Court on Doc. 24, Petitioner’s Motion for Extension of

Time to File an Amended Petition. Petitioner requests a 45-day extension of time,

citing inconvenience of access to the prison law library. 

This Court first directed Petitioner to file an Amended Petition on April 19, 2011,

to fully complete the form and list any state court remedies he pursued after his

disciplinary conviction that resulted in 100 days of lost gain time. (Doc. 17.) Petitioner

failed to timely respond and on June 15, 2011, the undersigned recommended the

Petition be dismissed for failure to exhaust state court remedies, failure to prosecute,

and failure to comply with a Court order. (Doc. 18.) Petitioner filed an untimely

objection to that Report and Recommendation, claiming that he mailed a request for

extension of time to the wrong court. (Doc. 19.) The case was recommitted to the

undersigned, who, in an abundance of caution, directed the Clerk to send Petitioner a

blank state prisoner habeas corpus form and directed Petitioner to file the Amended

Petition on or before November 3, 2011. (Docs. 20, 22.) The instant motion,

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postmarked November 4, 2011, now requests a 45-day extension of time. (Doc. 24.).

Petitioner is reminded that the face of Petitioner’s 28 U.S.C. § 2254 petition

reflects that he did not pursue state court remedies regarding the prison disciplinary

conviction that is the subject of the Petition. (Doc. 12.) Petitioner has provided no

specific information concerning his alleged exhaustion of state court remedies and the

primary purpose of requiring an Amended Petition is to afford him the opportunity to do

so. Petitioner has been aware that he is required to file an Amended Petition for nearly

seven months but has failed to do so and has repeatedly failed to timely comply with

this Court’s orders. Mindful of the consequences of dismissal of this case, the 1

undersigned will grant Petitioner a 30-day extension of time to filed an Amended

Petition. However, no further extensions will be granted absent a showing of

exigent circumstances and failure to comply will result in a recommendation that

case be dismissed. Petitioner’s status as a prisoner, whereby accessing the law

library is an “inconvenience” according to the instant motion, does not demonstrate an

exigent circumstance. 

Accordingly, it is ORDERED:

1. Petitioner’s Motion for Extension of Time to File an Amended Petition, Doc.

Petitioner should note that if he fails to respond to this Order and this case is 1

dismissed, any subsequently-filed habeas petition in this Court challenging the same

conviction may be barred by the one-year limitation period for filing a habeas petition in

the federal courts. See 28 U.S.C. § 2244(d)(1). Although the one-year period is tolled

during the time in which a properly filed application for state post- conviction relief is

pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is

"properly filed" under 28 U.S.C. § 2244(d)(2)), the time in which a federal habeas

petition is pending does not toll the one-year limitation period. See Duncan v. Walker,

533 U.S. 167 (2001) (holding that an application for federal habeas corpus review does

not toll the one-year limitation period under § 2244(d)(2)).

Case No: 4:10-cv-0498-MP-GRJ

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24, is GRANTED to the extent that a 30-day extension of time is permitted.

Petitioner shall file the Amended Petition, together with two identical service

copies, on or before December 14, 2011. Further extensions will not be

granted absent a showing of exigent circumstances. 

2. Failure to comply with this order within the allotted time will result in a

recommendation that this case be dismissed.

DONE AND ORDERED this 10 day of November 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 4:10-cv-0498-MP-GRJ

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