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Roman v. Napoli

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


February 10, 2009

ORLANDO ROMAN, 04B0396, PETITIONER,
v.
D.F. NAPOLI, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

Petitioner pro se Orlando Roman, before answer to his petition, has filed an amended 28 U.S.C. § 2254 petition, alleging that his conviction in Supreme Court, Monroe County, State of New York, was unconstitutionally obtained, as set forth more precisely in the petition. Respondent has filed a motion to extend time to answer the petition. Petitioner has also filed a motion for appointment of counsel, and for extension of time to respond to the answer.

IT HEREBY IS ORDERED as follows:

1. Respondent shall file and serve an answer to the amended petition, in accordance with Rules 4 and 5 of the Rules Governing Section 2254 Cases in the United States District Courts, no later than March 31, 2009. Further, the answer shall state whether a trial or any pre-trial or post-trial evidentiary proceeding was conducted. If any such proceeding was conducted, under the authority of Rule 4, the Court hereby directs respondent to provide to the Court the transcript of the proceeding, together with any record(s) of, and documents relating to, such proceeding, and such documents will be filed in the official record of this case. Respondent is also directed to address petitioner's request for counsel.

Respondent also shall file and serve by the above date a memorandum of law addressing each of the issues raised in the petition and including citations of relevant supporting authority.

Within thirty (30) days of the date this order is served upon the custodian of the records, the Clerk of Court or any other official having custody of the records of the proceedings in [ct of conviction (eg, Supreme)] Court at issue now before this Court shall submit such records to respondent or the respondent's duly authorized representative.

If petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, under the authority of Rule 4, the Court hereby directs respondent to provide to the Court a copy of the briefs and record on appeal and the opinions of the appellate courts, if any, and such documents will be filed in the official record of this case.

Petitioner shall have thirty (30) days upon receipt of the answer to file a written response to the answer and memorandum of law.

Within thirty (30) days of the date this order is filed with the Clerk of Court, respondent may file a motion for a more definite statement or a motion to dismiss the petition, accompanied by appropriate exhibits which demonstrate that an answer to the petition is unnecessary. The timely filing of such motion shall extend the time for filing an answer for fourteen (14) days, but the failure of the Court to act upon the motion within that time shall not further extend the time for filing an answer.

2. The Clerk of Court shall serve a copy of the petition, together with a copy of this order, by certified mail, upon respondent Superintendent of Southport Correctional Facility and upon the Assistant Attorney General in Charge, 144 Exchange Street, Rochester, New York 14614. To advise appropriate Monroe County officials of the pendency of this proceeding, the Clerk of Court shall also mail a copy of this order to the District Attorney of Monroe County.

3. Petitioner's motion for appointment of counsel is denied without prejudice as premature. Petitioner may renew his motion once respondent has answered the petition and addressed his motion.

PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR RESPONDENT.

SO ORDERED.

Rochester, New York

20090210

© 1992-2009 VersusLaw Inc.



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