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Welles v. Greene County Common Pleas Court

August 5, 2006

BETTY A. WELLES, PETITIONER,
v.
GREENE COUNTY COMMON PLEAS COURT, RESPONDENT.



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

District Judge Walter Herbert Rice

ORDER WITHDRAWING REPORT AND RECOMMENDATIONS AND ORDERING ANSWER

Petitioner Betty A. Welles brought this action pro se seeking a writ of mandamus to compel the Respondent Greene County Common Pleas Court to instruct the Ohio Adult Parole Authority to give her an additional sixty-nine days credit against the prison sentence she is presently serving.

On July 22, 2006, the Magistrate Judge recommended dismissing the original Petition without prejudice for lack of subject matter jurisdiction because federal courts do not have mandamus jurisdiction to grant the relief requested but offered Petitioner to alternative of filing a petition for writ of habeas corpus, which she has now done.

Accordingly, it is hereby ORDERED:

1. The Warden of the Ohio Reformatory for Women at Marysville is substituted for the Greene County Common Pleas Court as Respondent herein because that person is the custodian of Petitioner and therefore the proper respondent in this habeas corpus case.

2. The prior Report and Recommendations are WITHDRAWN.

Upon preliminary consideration pursuant to Rule 4 of the Rules Governing §2254 Cases, the Court finds that it does not plainly appear from the face of the Petition and any exhibits attached thereto that the Petitioner is not entitled to relief in this Court. Accordingly, it is hereby ORDERED that Respondent shall, not later than September 6, 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. Because failure to address the Petition very quickly may render it impossible for this Court to grant relief, no extensions will be granted on the answer date.

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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