Ronnie R. Wadell v. R. Madden
MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: 1. Petitioner's request to dismiss unexhausted Claim Three is GRANTED; 2. Respondent's Motion to Dismiss is DENIED as moot; 3. Respondent is ordered to file an answer within thirty (30) days of the date of this order addressing the merits of Claims One and Two. 4. Petitioner may file a single reply responding to matters raised in the answer within thirty (30) days of the date of service thereof. (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 17-3715-RGK (KK)
Date: June 27, 2017
Title: Ronnie R. Waddell v. R. Madden, Warden
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Petitioner:
Attorney(s) Present for Respondent:
Order re Respondent’s Motion to Dismiss Petition [Dkt. 8]
On May 12, 2017, Petitioner Ronnie R. Waddell (“Petitioner”) constructively filed a
Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254
(“Section 2254”). ECF Docket No. (“Dkt.”) 1. In the Petition, Petitioner raises three claims
for relief: (1) the evidence was insufficient to establish beyond a reasonable doubt that Petitioner
did not act in self-defense (“Claim One”); (2) the court erred in failing to instruct the jury on
self-defense of property (“Claim Two”); and (3) the court erred in failing to instruct the jury
they must restart deliberations when an alternative juror is substituted in after deliberations
commenced (“Claim Three”). Id. at 2-3.
On June 9, 2017, Respondent filed a Motion to Dismiss the Petition as a mixed Petition
(“Motion”) arguing Claim Three is unexhausted. Dkt. 8.
On June 21, 2017, Petitioner filed an Opposition. Dkt. 11. In the Opposition, Petitioner
concedes Claim Three is unexhausted. Id. at 1. Petitioner requests to dismiss Claim Three and
to proceed on exhausted Claims One and Two. Id. at 1-2.
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Therefore, it is HEREBY ORDERED that:
1. Petitioner’s request to dismiss unexhausted Claim Three is GRANTED;
2. Respondent’s Motion to Dismiss is DENIED as moot;
3. Respondent is ordered to file an answer within thirty (30) days of the date of
this order addressing the merits of Claims One and Two. At the time the answer
is filed, Respondent shall lodge with the court all records bearing on the merits of
petitioner’s claims, including the briefs specified in Rule 5(d) of the Rules
Governing Section 2254 Cases in the United States District Courts. The answer
shall also specifically address the necessity for an evidentiary hearing to resolve
any issue; and
4. Petitioner may file a single reply responding to matters raised in the answer
within thirty (30) days of the date of service thereof. Any reply filed by
Petitioner (a) shall state whether petitioner admits or denies each allegation of
fact contained in the answer; (b) shall be limited to facts or arguments responsive
to matters raised in the answer; and (c) shall not raise new grounds for relief that
were not asserted in the petition. Grounds for relief withheld until the reply will
not be considered, unless the court grants leave to amend the Petition. No reply
shall exceed twenty-five (25) pages in length absent advance leave of court for
good cause shown.
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