Edward Kenneth Werdell v. Department of Corrections

Eleventh Circuit

Edward Kenneth Werdell v. Department of Corrections

520 F. App'x 854

CourtCourt of Appeals for the Eleventh Circuit

DecidedMay 30, 2013

Docket10-14050

StatusUnpublished

This text of 520 F. App'x 854 (Edward Kenneth Werdell v. Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Edward Kenneth Werdell v. Department of Corrections, 520 F. App'x 854 (11th Cir. 2013).

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Opinion

PER CURIAM:

The judgment in this case is vacated and the case is remanded so that the district court can do what it offered to do in its February 25, 2011 order: allow the petition to proceed in that court without dismissal on the ground that it violated Rule 2(e) of the Rules Governing Section 2254 Cases. See Walker v. Crosby, 341 F.3d 1240, 1246 (11th Cir.2003), overruled on other grounds by Zack v. Tucker, 704 F.3d 917 (11th Cir.2013) (en banc). In doing so, the district court may consider any affirmative defenses the respondent raises, including the statute of limitations set out in 28 U.S.C. § 2244(d), which applies on a claim-by-claim basis, not on a petition-wide basis. Zack, 704 F.3d at 918.

We also note that the district court can take reasonable steps to have the petitioner clarify his petition, or any claims in his petition, that are difficult to parse or understand. See Rule 4, Rules Governing § 2254 Cases, Advisory Committee Notes on 1976 Adoption (“[T]he judge may want to consider a motion from respondent to make the petition more certain.”); see also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 983-84 (11th Cir.2008); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir.2006); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B 1981).

VACATED AND REMANDED. 1

1

. This appeal was originally scheduled for oral argument but was removed from the oral argument calendar by unanimous consent of the panel under 11th Circuit Rule 34 — 3(f)-

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PER CURIAM:

The judgment in this case is vacated and the case is remanded so that the district court can do what it offered to do in its February 25, 2011 order: allow the petition to proceed in that court without dismissal on the ground that it violated Rule 2(e) of the Rules Governing Section 2254 Cases. See Walker v. Crosby, 341 F.3d 1240, 1246 (11th Cir.2003), overruled on other grounds by Zack v. Tucker, 704 F.3d 917 (11th Cir.2013) (en banc). In doing so, the district court may consider any affirmative defenses the respondent raises, including the statute of limitations set out in 28 U.S.C. § 2244(d), which applies on a claim-by-claim basis, not on a petition-wide basis. Zack, 704 F.3d at 918.

We also note that the district court can take reasonable steps to have the petitioner clarify his petition, or any claims in his petition, that are difficult to parse or understand. See Rule 4, Rules Governing § 2254 Cases, Advisory Committee Notes on 1976 Adoption (“[T]he judge may want to consider a motion from respondent to make the petition more certain.”); see also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 983-84 (11th Cir.2008); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir.2006); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B 1981).

VACATED AND REMANDED. 1

1

. This appeal was originally scheduled for oral argument but was removed from the oral argument calendar by unanimous consent of the panel under 11th Circuit Rule 34 — 3(f)-

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520 F. App'x 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-kenneth-werdell-v-department-of-corrections-ca11-2013.

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