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Abshear v. Moore

May 23, 2006

KEITH ABSHEAR, PETITIONER,
v.
ERNIE MOORE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

District Judge Thomas M. Rose

ORDER DISSOLVING STAY AND FOR ANSWER

This habeas corpus case was, on August 4, 2005, stayed pending the outcome of Petitioner's application to the Clark County Court of Appeals to reopen his direct appeal pursuant to Ohio R. App. P. 26(B). On April 12, 2006, the Ohio Supreme Court denied consideration of that application on appeal from denial by the Clark County Court of Appeals. State v. Abshear, 109 Ohio St. 3d 1408 (2006).*fn1

The Court has already determine upon initial review (Doc. No. 3) that it does not plainly appear from the face of the Petition and exhibits that Petitioner is not entitled to relief. Accordingly, it is hereby ORDERED that Respondent shall, not later than July 3, 2006, file an answer conforming to the requirements of Rule 5 of the Rules Governing §2254 Cases. Specifically, said answer shall respond to each allegation made in the Petition, raise any affirmative defense relied on by Respondent, and state whether, from Respondent's perspective, any claim in the Petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.

The answer shall be accompanied by those portions of the state court record needed to adjudicate this case, appropriately indexed and tabbed. In lieu of these attachments, Respondent may request and the Court will issue a writ of certiorari to the relevant county's Clerk of Courts to produce the complete record.

Nothing in this Order is intended to prevent Respondent from filing a motion to dismiss or other pleading before filing the complete record if disposition can be made on an incomplete record.

Petitioner may, not later than twenty-one days after the Answer is filed, file and serve a reply to the Answer. If Respondent files a motion to dismiss, Petitioner's time to file a memorandum in opposition will likewise be twenty-one days from service, as provided in S. D. Ohio Civ. R. 7.2(a).

The Clerk is ordered to serve the Petition on Respondent and the Attorney General of Ohio, c/o Assistant Attorney General Stephanie Harris Watson, Sections Coordinator, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215.

Michael R. Merz Chief United States ...


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