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Schlee v. Williams

December 4, 2008

LARRY M. SCHLEE, PETITIONER,
v.
JESSE WILLIAMS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Vecchiarelli

JUDGE LIOI

ORDER

Respondent is directed to file a surreply addressing Petitioner's supplement to Ground Seven regarding the issue of double jeopardy. In the Return of Writ, Respondent asserts that the supplemental ground should be dismissed because Petitioner failed to comply with AEDPA's statute of limitations. Petitioner argues that his application for DNA testing tolls the running of the statute of limitations and that his supplemental ground is timely. The Sixth Circuit has yet to address this issue of whether an application for DNA testing tolls the statute of limitations and the two circuit courts that have addressed the issue have arrived at opposite conclusions. See Brown v. Secretary for the Department of Corrections, 530 F.3d 1335 (11th Cir. 2008); Hutson v. Quarterman, 508 F.3d 236 (5th Cir. 2007). As there is no clear precedent on this issue, Respondent is directed to address the issue of double jeopardy on the merits.*fn1 Respondent shall file a surreply on or before December 17, 2008.

IT IS SO ORDERED.

NANCY A. VECCHIARELLI UNITED STATES ...


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