Allen v. Perini
Decision Date | 18 October 1968 |
Docket Number | No. C 68-279 — C 68-281.,C 68-279 — C 68-281. |
Citation | 291 F. Supp. 144 |
Parties | Theodore R. ALLEN, Petitioner, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent. Richard DAVIS, Petitioner, v. Bennett J. COOPER, Respondent. Robert L. BOYKIN, Petitioner, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent. |
Court | U.S. District Court — Northern District of Ohio |
Theodore R. Allen in pro. per.
Richard Davis in pro. per.
Robert L. Boykin in pro. per.
Leo J. Conway, Asst. Atty. Gen., of State of Ohio, Columbus, Ohio, for respondent.
This cause came before the Court on respondent's motion for an extension of time within which to respond to show cause orders in three petitions for a writ of habeas corpus. Since all three motions present exactly the same questions, the Court is considering these three petitions for the purposes of these motions and for the purposes of these motions alone.
The petition in C 68-279 was filed on September 24 and the respondent was ordered to show cause on or before October 14; C 68-280 was filed on September 25 and the respondent was ordered to show cause on or before October 15; C 68-281 was filed on September 27 and the respondent was ordered to show cause on or before October 16. Thus the length of time in which the respondent was to show cause in C 68-279 and C 68-280 was twenty days while the length of time in which the respondent was to show cause was nineteen days in C 68-281.
The motions all carry the same recital of necessity for the extension of time:
This Court is entirely sympathetic to the problems which face the respondent. The Court takes notice that the respondent's attorney, the Office of the Attorney General of the State of Ohio, is extremely understaffed, overworked, and presumably underpaid. The case load which they state that they are handling is staggering. For this reason the Court is disposed to give the respondent as much time to reply to a habeas corpus from a prisoner in custody after conviction of a crime as it can under law.
Controlling in this matter is the second paragraph of 28 U.S.C. § 2243 which reads:
It is clear that it is within the discretion of the Court to grant extensions of time within the twenty day period. Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), cert denied, 384 U.S. 954, 86 S.Ct. 1574, 16 L.Ed.2d 550 (1966).1 Therefore the Court will grant respondent the full twenty day period in C 68-281.
The question of whether this Court is empowered to grant an extension of time beyond the twenty day limit expressed in the statute appears never to have been faced by the Courts of the United States. The present wording was changed from the former more complicated provisions to the same effect by the Judiciary Act of 1948. Unfortunately the hearings and reports surrounding this Act express no reason for the change.2
Speaking of the former statute which provided for return on or before various dates depending on the distance between the place of custody and the court in which the petition for the writ was filed, the Supreme Court of the United States has said:
Ex parte Baez, 177 U.S. 378, at 388-389, 20 S.Ct. 673, 677, 44 L.Ed. 813 (1900). In this case the writ had not been returned.
Unfortunately the court did not there reach the question of allowance of time beyond the limits set in the statute.
Since the writ of habeas corpus as it is known today derives its origin from the Great Acts of the English Parliament during the Interregnum, the reign of Charles II and the reign of William and Mary it is relevant to look to determine what the various states have done when faced with similar problems. A search of the state statutes indicates that a number of states have time limitations of some form.3 These time limitations vary from the clearly discretionary4 to the clearly mandatory.5 But without a single exception, none of these states have had occasion to pass on the question. There is a passing reference in a recent Missouri case to the time limitation in that statute being mandatory.6
Some years ago the Supreme Court in New York had an opportunity to discuss whether such a limitation was mandatory or discretionary. While its discussion is entirely dictum, this Court believes that it is relatively persuasive:
Looking at the present federal statute, 28 U.S.C. § 2243, particularly in light of the Jenkins case, supra, it appears that the three and twenty day provisions established therein are the outside limits of the reasonable time for the return of writ mentioned by the Supreme Court. Ex parte Baez, supra. This Court does not undertake to substitute its judgment for that of the Congress.
The history of the writ is so well known that there is no need to repeat it here. The courts must jealously guard it lest the very occurrences which exercised the New York legislature in 1787 again occur. While the scope of the writ has been greatly increased since the establishment of the maximum time for return by Congress, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), for the courts to undertake to extend time beyond that twenty day limitation would only tend to weaken the power of the writ.
When the Office of the Attorney General of the State of Ohio was having difficulty responding to ten day show cause orders, we extended the time to twenty days. Were we now to extend it to thirty days, I am sure that this too would be too little time, for that office has always been and will always be busy. I sympathize with the respondent, but I am bound by the law.
Should the respondent desire to alleviate this problem, it would appear that he would have two courses. The first would be to petition Congress to extend the time limitation established in the statute for post-conviction habeas corpus. The second and better course would be for the State of Ohio to increase the size of the staff in the Office of the Attorney General to permit handling of these petitions more expeditiously. It would certainly appear that the citizens of the State of Ohio could afford a penny a person to preserve the integrity of this great writ.
Since the motions in C 68-279 and C 68-280 seek an extension of time beyond what this Court has determined to be the maximum allowable time for making a return, they will be denied. For the reasons already set forth, the time in which to show cause in C 68-281 will be extended until October 17, 1968. An order...
To continue reading
Request your trial-
Bermudez v. Reid
...an answer must be filed is a mandatory deadline not to be exceeded. Mattox v. Scott, 507 F.2d 919, 923 (7th Cir.1974); Allen v. Perini, 291 F.Supp. 144 (N.D.Ohio 1970). Thus, in evaluating what appropriate actions are open to a district court when a respondent has repeatedly failed to answe......
-
Allen v. Perini
...to grant any extension of time, holding in a published opinion that he has no authority to do so under 28 U.S.C. § 2243. Allen v. Perini, 291 F.Supp. 144 (N.D. Ohio). The return to the show cause order was filed on October 21, 1968, three days after the decision of the District Judge and se......
-
Troglin v. Clanon
...of a district court. One reported opinion by a district court does intepret § 2243 in the manner petitioner urges. In Allen v. Perini, 291 F.Supp. 144, 148 (N.D.Ohio 1968), in ruling on motions for extensions, the court held "looking at the present federal statute, 28 U.S.C. § 2243, * * * i......
- Benton v. Copinger, Civ. No. 18872.