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Luckett v. Folino

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


September 8, 2009

EDDIE LEE LUCKETT, JR., PETITIONER
v.
LOUIS FOLINO, RESPONDENT

The opinion of the court was delivered by: Judge Rambo

Magistrate Judge Carlson

ORDER

AND NOW, for the reasons explained in the within memorandum, IT IS HEREBY ORDERED THAT:

1. The Court finds that Petitioner's application for relief under 28 U.S.C. § 2254 does not constitute a "second or successive" petition under 28 U.S.C. § 2244(b) and, accordingly, the Court rejects Respondent's argument that the Court lacks subject matter jurisdiction to consider the petition.

2. On or before November 23, 2009, Respondent shall file a detailed answer to the petition for a writ of habeas corpus. Consistent with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, the answer shall:

a) address the allegations in the petition;

b) state whether any claim in the petition is barred by failure to exhaust state remedies, a procedural bar, non-retroactivity, a statute of limitations and make whatever further argument Respondent deems appropriate regarding whether this petition constitutes a "second or successive" petition;

c) indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed;

d) be accompanied by parts of the transcript that the Respondent considers relevant;

e) be accompanied by copies of any briefs filed by the Petitioner on appeal contesting the conviction, sentence, or an adverse judgment or order in a post-conviction proceeding;

f) be accompanied by copies of any briefs that the prosecution submitted in an appellate court relating to the conviction or sentence; and

g) be accompanied by the opinions and dispositive orders of the state courts relating to the conviction or the sentence.

In addition to the foregoing, the answer shall also set forth the relevant facts and procedural history of the case, a recommended disposition of the petition, and citations to pertinent case law.

3. Petitioner shall be permitted to file a reply to the answer within 15 days after it is filed, or on or before December 8, 2009.

4. A determination as to whether there will be a hearing will be made after the filing of an answer and any reply.

Martin C. Carlson United States Magistrate Judge

20090908

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