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HUDSON v. HELMAN

United States District Court, Central District of Illinois, Peoria Division


December 2, 1996

RAYMOND CLAY HUDSON, PETITIONER,
v.
DAVID HELMAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: McDADE, District Judge.

ORDER

On October 30, 1996, this Court ordered Respondent to respond to Petitioner Raymond Clay Hudson's § 2241 Petition within 45 days. Presently before the Court is Hudson's Motion to Amend Show Cause Order to Comply with Statute [Doc. # 6] in which he contends that 45 days is far too long a time for the response. Hudson relies on 28 U.S.C. § 2243 which provides in relevant part:

  The writ, or order to show cause shall be directed to
  the person having custody of the person detained. It
  shall be returned within three days unless for good
  cause additional time, not exceeding twenty days, is
  allowed.

For the following reasons, Petitioner's motion is denied.

Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, "In applications for habeas corpus in cases not covered by subdivision (a) [involving persons in state custody], these rules may be applied at the discretion of the United States district court." Thus, while the instant Petition is brought pursuant to 28 U.S.C. § 2241, not 28 U.S.C. § 2254, and involves a prisoner in federal custody, the Rules Governing Section 2254 Cases may still be applied here. Kramer v. Jenkins, 108 F.R.D. 429, 431 (N.D.Ill. 1985).

Rule 4 of the Rules Governing Section 2254 Cases provides in relevant part:

  [T]he judge shall order the respondent to file an
  answer or other pleading within the period of time
  fixed by the court or to take such other action as
  the judge deems appropriate.

Because Rule 4 has the force of a superseding statute pursuant to 28 U.S.C. § 2072(b), it takes precedence over 28 U.S.C. § 2243 and gives the Court reasonable discretion to set the deadline for a response. Bleitner v. Welborn, 15 F.3d 652, 653-54 (7th Cir. 1994); Kramer, 108 F.R.D. at 431-32. The Court finds that 45 days is a reasonable time in which to require a response here, taking into account the complexity of the Petition, the ability of Respondent to acquire the relevant documentary evidence, and the current case-load of the United States Attorneys.

CONCLUSION

IT IS THEREFORE ORDERED that Petitioner's Motion to Amend Show Cause Order to Comply with Statute [Doc. # 6] is DENIED.

19961202

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