United States District Court, Central District of Illinois, Peoria Division
December 2, 1996
RAYMOND CLAY HUDSON, PETITIONER,
DAVID HELMAN, WARDEN, RESPONDENT.
The opinion of the court was delivered by: McDADE, District Judge.
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
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
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
[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.
IT IS THEREFORE ORDERED that Petitioner's Motion to Amend Show
Cause Order to Comply with Statute [Doc. # 6] is DENIED.
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