Ordway v. Miller

Filing 36

ORDER Denying Petitioner's Motion For Summary Judgment (Doc. 30 ), signed by Magistrate Judge Michael J. Seng on 3/19/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICIA ANNE ORDWAY,

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Petitioner,
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v.
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MILLER, Warden,
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Respondent.
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________________________________)

1:11-cv-00616 LJO MJS HC
ORDER DENYING PETITIONER’S
MOTION FOR SUMMARY JUDGMENT
[Doc. 30]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

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Petitioner filed the present petition on April 21, 2011. On March 7, 2012, Respondent,

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as ordered, filed an answer to the petition. On March 26, 2012, Petitioner filed a motion for

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summary judgment asserting as grounds that Respondent’s answer responded to claims in

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the original, rather than the amended, petition for writ of habeas corpus.

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On April 24, 2012, Respondent filed an amended answer to the petition. Respondent

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also filed an accompanying letter acknowledging the inadvertent response to the original

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answer, but noting that the claims, though renumbered, were the same in both petitions.

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Respondent submitted an amended answer to conform to the numbering of claims present in

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the amended petition.

U .S. D istrict C ourt
E. D . C alifornia

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Petitioner's motion for summary judgment is denied. While the Federal Rules of Civil

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Procedure may be applied to habeas proceedings, Petitioner's motion for summary judgment

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is not appropriate in this instance. See Rule 12, Rules Governing Section 2254 Cases. The

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Court ordered Respondent to address the merits of Petitioner's claims. Respondent has done

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so. The Court shall address the merits of the petition in due course.
Accordingly, it is hereby ordered that Petitioner’s motion of summary judgment is

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DENIED. (ECF No. 30.)

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IT IS SO ORDERED.
Dated:
92b0h

March 19, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
E. D . C alifornia

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