Hayes v. Page
MEMORANDUM DECISION AND ORDER Petitioner's Motion for Appointment of Counsel (Dkt. 14 ) is DENIED without prejudice. Petitioner's Motion to Strike State's Lodging of Record (Dkt. 15 ) is DENIED. Petitioner's Request for Produ ction of Clerk Record (Dkt. 16 ) is DENIED as MOOT. Petitioner's Motion to Lodge Request for Production of Clerk Record (Dkt. 17 ) is DENIED as MOOT. Respondent's Motion for Partial Summary Dismissal (Dkt. 10 ) is GRANTED. Claims 2 and 4 are subject to dismissal with prejudice unless Petitioner shows cause and prejudice to excuse the default of these claims. Respondent shall file an Answer to the remaining claims within 90 days. Petitioner thereafter may file a reply (including an y cause and prejudice arguments and any arguments arising from his late receipt of the full state court record in this matter) within 45 days, and Respondent may file a sur-reply within 21 days. No further filings shall be made without leave of Court. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL THOMAS HAYES
Case No. 1:16-cv-00386-BLW
Petitioner Michael Thomas Hayes, a prisoner in custody of the Idaho Department
of Correction (IDOC), filed a Petition for Writ of Habeas Corpus challenging his state
court conviction for a third DUI conviction that was elevated to a felony because of two
prior DUI convictions. (Dkt. 3.) In particular, he contests the fact that, at the time he was
convicted of his first two DUIs, state law provided that three DUIs within five years
amounted to a felony for the third DUI, but after that date, the law changed to be three
DUIs within ten years, and, therefore, Petitioner’s third DUI made him eligible for felony
DUI and a longer sentence. (See Dkt. 13-1.)
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In response to the Petition, Respondent Warden Chad Page filed a Motion for
Partial Summary Dismissal that is now ripe for adjudication. (Dkts. 10, 13, 18.) Petitioner
filed a Response to the Motion and several of his own motions. (Dkts. 14, 15, 16, 17.)
Having reviewed the record, the Court concludes that oral argument is
unnecessary. Accordingly, the Court enters the following Order addressing the pending
1. Motion for Appointment of Counsel (Dkt. 14)
There is no constitutional right to counsel in a habeas corpus action. Coleman v.
Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as
provided by rule, if counsel is necessary for effective discovery or if an evidentiary
hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section
2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an
indigent petitioner in any case where required by the interests of justice. 28 U.S.C. §
2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a
petitioner’s ability to articulate his claims in light of the complexity of the legal issues
and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th
Petitioner asserts that it would be equitable to appoint counsel for him because he
has litigated two-thirds of his case pro se, that he has only recently obtained his GED, and
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that he has no legal expertise and few legal resources at the prison to pursue his case. He
I am innocent of the felony DUI that I am incarcerated for. If it was
not for the breach of contracts, or plea agreements, I would have only been
convicted of and incarcerated for a misdemeanor DUI and I would no
longer be confined in the state prison where I remain confined.
(Dkt. 14, p. 4.)
The Court will deny the request for appointment of counsel for the following
reasons. The issues before the Court are not legally complex, and Petitioner asserts that
he has obtained a paralegal’s help in researching the issues presented to the Court. The
standard for granting a habeas corpus petition is extraordinarily high, and a preliminary
review of the claims does not convince the Court that appointing counsel would make
any difference in aiding Petitioner’s arguments or the Court’s decisionmaking in this
action. The Court will reconsider its decision after it has reviewed the briefing on the
merits of the claims that proceed to the next phase of litigation, without the need for
Petitioner to file a separate motion.
2. Motion to Strike State’s Lodging of Record (Dkt. 15), Request for
Production of Clerk Record (Dkt. 16), and Motion to Lodge Request for
Production of Clerk Record (Dkt. 17)
Petitioner asks that a portion of the state court record be stricken because he does
not have access to copies of it. Respondent states that he has complied with the Court’s
Order and the Rules Governing § 2254 Cases by lodging all relevant portions of the state
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court record. Petitioner followed up his request by alternatively requesting that he be
provided with a copy of the Clerk’s record. Respondent has given notice to the Court that
he provided a copy of the state court record to Petitioner on April 10, 2017. (Dkt. 21.)
Thus, Petitioner’s Motion to Strike will be denied, and his Motion to Produce will be
deemed moot. Petitioner’s Motion to Lodge Request (Dkt. 21) will be denied as
unnecessary (the only items lodged in a habeas corpus action are historical records from a
past closed state court case; motions and requests are filed, rather than lodged, because
they are requests that the Court take action in this case).
MOTION FOR PARTIAL SUMMARY DISMISSAL
1. Standard of Law governing Summary Dismissal
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may file a motion for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases
authorizes the Court to summarily dismiss a petition for writ of habeas corpus when “it
plainly appears from the face of the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court.” The Court takes judicial notice of the records
from Petitioner’s state court proceedings, lodged by the parties.
Petitioner pleaded guilty to and was convicted of felony DUI—a charge which
consists of three or more DUI convictions within ten years, under I.C. § 18-8004—in a
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criminal action in the Fourth Judicial District Court in Ada County, Idaho. The judgment
of conviction was entered on October 26, 2011. Petitioner received a sentence of 2 years
fixed with 8 years indeterminate.
Petitioner did not file a direct appeal, but filed a post-conviction action. Petitioner
was appointed counsel, and the state district court held an evidentiary hearing on the
post-conviction petition. (State’s Lodging B-2.) Thereafter, the court dismissed the postconviction petition without affording Petitioner any relief. (State’s Lodging B-1, pp. 114122.)
Petitioner was appointed counsel on appeal, who withdrew from the case after
three attorneys in counsel’s office found no meritorious issues for appeal. (State’s
Lodgings C-1 to C-3.) Petitioner filed his own appellate briefing, and he had no success
before the Idaho Court of Appeals or the Idaho Supreme Court. (State’s Lodgings C-5 to
Petitioner’s Rule 35 motion to correct an illegal sentence regarding restitution was
pending when he filed his Petition, but has since been resolved; regardless, because
habeas corpus does not concern monetary issues, the Rule 35 claim regarding restitution
is not relevant here. (See State’s Lodging D-7.)
In the Initial Review Order, the Court construed the Petition as containing the
following claims: (1) trial counsel was ineffective for (a) failing to seek “specific
performance” for the state’s breach of plea agreements made in Petitioner’s prior
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misdemeanor DUI convictions, and (b) failing to attempt to collaterally attack the prior
misdemeanor DUI convictions which served as the predicate offenses for Hayes’ felony
DUI; (2) Idaho Code §§ 18-8005 and 18-8006 are facially unconstitutional; (3) (a) trial
counsel was ineffective for coercing Petitioner’s guilty plea and/or (b) Petitioner’s guilty
plea was invalid because it was involuntary; and (4) the state courts’ “misapplication” of
State v. Lamb, 206 P.3d 497 (Idaho App. 2009), violated Petitioner’s constitutional rights.
In the Motion for Partial Summary Dismissal, Respondent asserts that Claims (2),
(3)(b), and (4) are procedurally defaulted, and, alternatively, that Claim (4) is
noncognizable in a federal habeas corpus action. Respondent also clarifies, appropriately,
that regardless of how Petitioner’s claims are construed, the only constructions that are
properly exhausted are those that match the claims Petitioner properly presented to the
Idaho Supreme Court in his post-conviction appeal, as no direct appeal was filed in his
3. Standard of Law governing Procedural Prerequisites to Habeas Relief
Habeas corpus law requires that a petitioner “exhaust” his state court remedies
before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a
claim, a habeas petitioner must fairly present it as a federal claim to the highest state
court for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative
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to a particular claim, a federal district court cannot grant relief on that claim, although it
does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2).
State remedies are considered technically exhausted, but not properly exhausted, if
a petitioner failed to pursue a federal claim in state court and there are no remedies now
available. O’Sullivan, 526 U.S. at 848. A claim may also be considered exhausted,
though not properly exhausted, if a petitioner pursued a federal claim in state court, but
the state court rejected the claim on an independent and adequate state law procedural
ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991).
Under these circumstances, the claim is considered “procedurally defaulted.”
Coleman, 501 U.S. at 731. A procedurally defaulted claim will not be heard in federal
court unless the petitioner shows either that there was legitimate cause for the default and
that prejudice resulted from the default, or, alternatively, that the petitioner is actually
innocent and a miscarriage of justice would occur if the federal claim is not heard. Id.
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488
(1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that
the errors [in his proceeding] constituted a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
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An attorney’s errors that rise to the level of a violation of the Sixth Amendment
right to effective assistance of counsel may, under certain circumstances, serve as a cause
to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, Petitioner can show cause and prejudice for the
default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal
court can consider ineffective assistance of counsel as cause to excuse the default of
underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in
a post-conviction relief petition, including through the level of the Idaho Supreme Court.
As to a related but different topic–errors of counsel made on post-conviction
review that cause the default of other claims–the general rule on procedural default is that
any errors of a defense attorney during a post-conviction action cannot serve as a basis
for cause to excuse a petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. at 752. This rule arises from the principle that a petitioner does not
have a federal constitutional right to effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez,
999 F.2d 425, 430 (9th Cir. 1993).
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Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception to this
general rule. That case held that inadequate assistance of post-conviction review (PCR)
counsel or lack of counsel “at initial-review collateral review proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
at 9. To show ineffective assistance of PCR counsel, Petitioner must show that the
defaulted ineffective assistance of trial counsel claims are “substantial,” meaning that the
claims have “some merit.” Id. at 14. To show that each claim is substantial, Petitioner
must show that trial counsel performed deficiently, resulting in prejudice, defined as a
reasonable probability of a different outcome at trial. Id.; see Strickland, 466 U.S. at 69596.
If a petitioner cannot show cause and prejudice for a procedurally defaulted claim,
he can still raise the claim if he demonstrates that the court’s failure to consider it will
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494
(1991). A miscarriage of justice means that a constitutional violation has probably
resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496.
To show a miscarriage of justice, a petitioner must make a colorable showing of
factual innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). Where the petitioner
pleaded guilty and did not have the evidence in his case evaluated by a jury, he must
show that, based on all of the evidence, “it is more likely than not that no reasonable juror
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would have found Petitioner guilty. . . .” Van Buskirk v. Baldwin, 265 F.3d 1080, 1084
(9th Cir. 2001), citing Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence
“which may establish factual innocence include credible declarations of guilt by another,
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see
Schlup, 513 U.S. at 331, and exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d
348, 350-51 (8th Cir. 1996). The evidence supporting the actual innocence claim must be
“newly presented” evidence of actual innocence, meaning that “it was not introduced to
the jury at trial”; it need not be “newly discovered,” meaning that it could have been
available to the defendant during his trial, though it was not presented to the jury. Griffin
v. Johnson, 350 F.3d 956, 962–63 (9th Cir. 2013).
4. Discussion of Procedural Issues
Claim (2) is that “the language of Idaho Code §§ 18-8004 and 18-8005 on its face
violates the 14th Amendment of the U.S. Constitution in connection to ‘plea
agreements/bargains.’” (Dkt. 3, p. 15.) In addition, Petitioner argues that “this statute’s
intent does not coincide with the due process found in the statute[’]s level of offense
within the sentencing order.” (Id.)
Respondent argues that the state appellate record reflects that, while Petitioner
mentioned Idaho Code §§ 18-8005 and 18-8006 in his post-conviction appellate briefing,
he did so in the context of presenting other claims; he did not specifically challenge the
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facial constitutionality of these statutes. (State’s Lodging C-5, pp. 8, 11-13 17, 27-28,
38.) Neither did the Idaho Court of Appeals address on its own the constitutionality of the
statutes in its decision. (State’s Lodging C-8.)
Having reviewed the state court record, the Court agrees with Respondent’s
characterization of the record. Petitioner seems to believe that, regardless of the way he
argued his claims before the Idaho appellate courts, he should be permitted to now argue
that the statutes are unconstitutional—simply because, he asserts, application of them in
his case was improper. However, he is mixing up a facial challenge with an as-applied
challenge. He presented only as-applied challenges in his state appellate proceeding, and
did so only as state law claims. Therefore, a facial challenge to the state laws is
procedurally defaulted for Petitioner’s failure to afford the state appellate courts the first
opportunity to address that claim.
To the extent that Petitioner mentioned the words “due process” in his appellate
briefing, the Idaho Court of Appeals determined that a “due process” claim “either w[as]
not raised below or do[es] not have any legal or factual basis and will not be addressed on
appeal.” (State’s Lodging C-8, p. 2, n. 2.) Therefore, any federal “due process” claim is
procedurally defaulted for failure to properly raise it or support it for the following
“To qualify as an adequate procedural ground, a state rule must be firmly
established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (internal
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quotation marks omitted). That is, the state procedural bar must be one that is “‘clear,
consistently applied, and well-established at the time of the petitioner’s purported
default.’” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v.
Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar can be considered
adequate even if it is a discretionary rule, even though “the appropriate exercise of
discretion may permit consideration of a federal claim in some cases but not others.”
Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an imprecise standard . . .
is no justification for depriving a rule’s language of any meaning.” Walker, 562 U.S. at
318 (internal quotation marks and alteration omitted).
A state procedural bar is “independent” of federal law if it does not rest on, and if
it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.
2003). A rule will not be deemed independent of federal law “if the state has made
application of the procedural bar depend on an antecedent ruling on federal law such as
the determination of whether federal constitutional error has been committed.” Id.
(internal quotation marks and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68,
75 (1985) (stating that “when resolution of the state procedural law question depends on a
federal constitutional ruling, the state-law prong of the court’s holding is not independent
of federal law, and our jurisdiction is not precluded,” and holding that a state waiver rule
was not independent because, “[b]efore applying the waiver doctrine to a constitutional
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question, the state court must rule, either explicitly or implicitly, on the merits of the
Idaho appellate courts generally will not consider arguments made for the first
time on appeal. See Row v. State, 21 P.3d 895, 902 (Idaho 2001) (“The longstanding rule
of this Court is that we will not consider issues that are raised for the first time on
appeal.”). Petitioner has not shown that this procedural rule was unclear, inconsistently
applied, or not well-established at the time of the default. See Klauser, 266 F.3d at 109394. Neither has Petitioner shown that this rule has a federal basis.
The Idaho appellate courts generally will not consider claims or issues that are not
supported by argument or authority. See State v. Zichko, 923 P.2d 966, 970 (Idaho 1996).
The Ninth Circuit has held that Zichko established an adequate and independent state
procedural rule. Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Petitioner has
presented no contrary case law showing that the appellate courts regularly contravene this
Because Petitioner did not first present Claim 2 to the Idaho Supreme Court for
adjudication in a procedurally proper manner, he cannot do so here, absent showing cause
and prejudice or a miscarriage of justice to excuse the default of his claim.
On initial review, the Court liberally construed Claim (3) as containing two
different claims: (a) that Petitioner’s alleged involuntary plea arose from his counsel
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coercing him to plead guilty “by dismissing arguments Petitioner desired to assert at trial
and telling him he could get a persistent violator enhancement and life sentence if he did
not take the State’s plea bargain”; and (b) that Petitioner’s guilty plea was invalid because
it was involuntary, as a separate stand-alone claim resting on the same facts as 3(a).
(State’s Lodging C-8, p. 3.) The parties seem to agree in their briefing that the claim is
one and the same. The record supports this conclusion. Therefore, the Court will not
separately address a claim of involuntariness of the guilty plea, but will do so only in the
context of ineffective assistance of counsel, which is a properly-exhausted claim that will
proceed to the merits in the next phase of litigation.
Claim 4 is that the state courts’ “misapplication” of State v. Lamb, 206 P.3d 497
(Idaho App. 2009), violated Petitioner’s constitutional rights. (Dkt. 3.) The Court agrees
with Respondent that Petitioner made a state law claim based upon Lamb in his state
post-conviction matter, but he did not argue that the failure to apply Lamb to his case
violated his federal constitutional rights. (State’s Lodging C-5.) In fact, Petitioner stated
in his appellate brief, “Petitioner does not argue any ex post facto clause matters.”
(State’s Lodging C-5, p. 18 (emphasis in original).) Instead, Petitioner argued that “the
district court abused its discretion in failing to address or consider the contractual test
elements or prongs in connection to the Recidivist Notice meeting the judicial standards
of a contract before ‘somehow’ link it to part of the plea bargain as stated in State v.
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Lamb.” (Id., p 19 (verbatim).) An “abuse of discretion” claim is a state law claim, while
an ex post facto claim can be a federal claim.
The Idaho Court of Appeals did not discuss Petitioner’s Lamb argument as a
stand-alone constitutional claim—ex post facto or otherwise. (State’s Lodging C-8.) The
Idaho Court of Appeals rejected Petitioner’s state law contract theory based upon the
state statutes at issue. (Id., pp. 506.)
Petitioner attempted to present, for the first time on appeal, cognizable federal
claims in his state appellate briefing, but his attempt was rejected. His claim that the
prosecutor’s breach of the earlier DUI plea agreements is a cognizable federal habeas
corpus claim,1 but the Idaho Court of Appeals refused to hear such a claim because
Petitioner did not raise it in the district court or provide any legal or factual support for it.
(State’s Lodging C-8, p. 2.) As noted above, this ground is an independent and adequate
basis for procedural default in this matter.
In summary, the state appellate courts’ rejection of Petitioner’s state law Lamb
argument on state law grounds does not transform his claim into a federal issue for
habeas corpus review. State law arguments are not cognizable on federal habeas corpus
review. Neither did his attempts to present federal issues for the first time on appeal
A prosecutor’s breach of a plea agreement is a cognizable federal habeas corpus claim. Gunn v. Ignacio,
263 F.3d 965, 971 (9th Cir. 2001). The federal habeas corpus remedy for such a claim is a remand to the state court
for resentencing or such other relief as the state court deems appropriate. Id. Due process requires that “when a plea
rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).
MEMORANDUM DECISION AND ORDER - 15
constitute proper presentation. Petitioner may attempt to show cause and prejudice under
Martinez v. Ryan, if he believes that post-conviction counsel in the initial phase of that
action performed ineffectively by failing to raise the claims in state district court. (See the
standard set forth above.)
Addressing Respondent’s second argument concerning Claim 4, the Court agrees
to the extent that Petitioner now presents his state law claims in his federal Petition for
adjudication in this Court, they are not cognizable on habeas corpus review. Title 28
U.S.C. § 2254 provides relief only for violations of federal law or the federal
5. Cause and Prejudice
Petitioner has not made a cause and prejudice argument to excuse the procedural
default of his claims. He may do so in his reply to Respondent’s answer, if desired.
6. Miscarriage of Justice
Petitioner’s argument is not that he is factually innocent of the DUIs, but that he is
legally innocent. Such an argument does not meet the actual innocence standard. See
Herrera v. Collins, 506 U.S. at 404. Therefore, actual innocence does not provide a
gateway for the Court to hear Petitioner’s procedurally defaulted claims. Petitioner shall
not include this argument in any further briefing.
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IT IS ORDERED:
1. Petitioner’s Motion for Appointment of Counsel (Dkt. 14) is DENIED without
2. Petitioner’s Motion to Strike State’s Lodging of Record (Dkt. 15) is DENIED.
3. Petitioner’s Request for Production of Clerk Record (Dkt. 16) is DENIED as
4. Petitioner’s Motion to Lodge Request for Production of Clerk Record (Dkt. 17) is
DENIED as MOOT.
5. Respondent’s Motion for Partial Summary Dismissal (Dkt. 10) is GRANTED.
Claims 2 and 4 are subject to dismissal with prejudice unless Petitioner shows
cause and prejudice to excuse the default of these claims.
6. Respondent shall file an Answer to the remaining claims within 90 days. Petitioner
thereafter may file a reply (including any cause and prejudice arguments and any
arguments arising from his late receipt of the full state court record in this matter)
within 45 days, and Respondent may file a sur-reply within 21 days. No further
filings shall be made without leave of Court.
MEMORANDUM DECISION AND ORDER - 17
DATED: August 28, 2017
B. Lynn Winmill
United States District Court
MEMORANDUM DECISION AND ORDER - 18
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