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FRAZIER v. WARDEN, 3:11cv00419. (2012)

Court: District Court, S.D. Ohio Number: infdco20120207b22 Visitors: 12
Filed: Feb. 06, 2012
Latest Update: Feb. 06, 2012
Summary: ORDER SHARON L. OVINGTON, Magistrate Judge. This case is presently before the Court upon Respondent's Motion to Strike Petitioner's Reply (Doc. # 11), and the record as a whole. Respondent "respectfully moves the Court to strike Petitioner's `Reply to Respondent's Response to Petitioner's Motion for an Evidentiary Hearing'. . . . because it was not timely filed and Petitioner has not properly requested leave of court to file the motion." (Doc. # 11 at 1). Respondent argues that "Petitioner's
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ORDER

SHARON L. OVINGTON, Magistrate Judge.

This case is presently before the Court upon Respondent's Motion to Strike Petitioner's Reply (Doc. # 11), and the record as a whole. Respondent "respectfully moves the Court to strike Petitioner's `Reply to Respondent's Response to Petitioner's Motion for an Evidentiary Hearing'. . . . because it was not timely filed and Petitioner has not properly requested leave of court to file the motion." (Doc. # 11 at 1).

Respondent argues that "Petitioner's Reply was due January 4, 2012, but Petitioner did not file his Reply until January 30, 2012." (Id. at 2). While Respondent is correct that Petitioner's Reply was due January 4, 2012, but not entered on the docket until January 30, 2012, Petitioner's Reply was nonetheless filed timely because of the "prison mailbox rule," as established in Houston v. Lack, 487 U.S. 266, 270, 101 L. Ed. 2d 245, 108 S.Ct. 2379 (1988). See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999) ("In Houston, the Supreme Court held that a prisoner's notice of appeal will be deemed timely filed if it is delivered to the proper prison authorities for forwarding to the district court within the time allotted for an appeal. At least three circuits have extend the rule of Houston either to all prisoner mailroom filings in general or to objections to magistrate judges' reports.") (internal citations omitted); see also Lyons-Bey v. Pennell, 93 Fed. Appx. 732, 733 (6th Cir. 2004) (Prisoner's response to motions to dismiss deemed filed when given to prison officials).

In this case, Petitioner's Certificate of Service indicates his pro se reply was mailed to Respondent on January 3, 2012. (Doc. #5 at 5). Absent evidence to the contrary, Petitioner's Reply is deemed filed as of this date. Accordingly, it is therefore ORDERED that Respondent's Motion to Strike Petitioner's Reply (Doc. # 11) is DENIED.

Source:  Leagle

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