Madsen v. Baker et al

Filing 41

ORDER that respondents file a supplement to their answer by 3/22/2018; petitioner to have 15 days from service of supplemental answer to file a supplemental reply; respondents' motion to strike (ECF No. 38 ) is granted; petitioner 's subpoena duces tecum (ECF No. 37 ) is stricken; ECF No. 34 petitioner's request for status check and for the State to produce evidence of a confession is denied; and ECF No. 40 petitioner's request for status check and for this case to be heard is denied. Signed by Judge Miranda M. Du on 3/7/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 PATRICK OWEN MADSEN, 10 11 12 Case No. 3:14-cv-00573-MMD-WGC Petitioner, v. ORDER RENEE BAKER, et al., Respondents. 13 14 This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 15 (ECF No. 6.) Only Ground 4 of the petition remains pending for the Court’s consideration. 16 Respondents have answered the petition (ECF No. 28), and petitioner has filed a reply 17 (ECF No. 29). Petitioner has also filed two requests for status checks (ECF Nos. 34 & 40) 18 and a subpoena duces tecum (ECF No. 37), which respondents have moved to strike 19 (ECF No. 38). 20 Ground 4 of the petition contains an assertion that petitioner “is entitled to his own 21 statements.” (ECF No. 6 at 10.) In isolation, it is not clear what petitioner means by this 22 assertion. However, in light of his reply and other filings, the Court understands this to be 23 a claim that the State violated Brady v. Maryland, 373 U.S. 83 (1963) when it allegedly 24 failed to provide the defense with audio tape recordings of petitioner’s August 4, 2006, 25 interview with Officer Maribah Cowley. (See ECF Nos. 29, 34, 37 & 40.) Respondents’ 26 answer did not address this portion of Ground 4.1 27 28 1The failure is certainly understandable, as the claim is not clearly asserted within the four corners of the petition. 1 It is therefore ordered that respondents will file a supplement to their answer that 2 responds to this Brady claim within fifteen (15) days of the date of this order. In so doing, 3 respondents must file any relevant portions of the state court record that have not already 4 been filed with the Court, including but not limited to the State’s answer to petitioner’s 5 state habeas petition. 6 7 It is further ordered that petitioner will have fifteen (15) days after service of the supplemental answer within which to file a supplemental reply. 8 It is further ordered that respondents’ motion to strike (ECF No. 38) is granted. As 9 discovery has not been granted in this case, petitioner’s subpoena duces tecum (ECF 10 NO. 37) is hereby stricken. 11 It is further ordered that, to the extent petitioner moves for discovery by way of the 12 subpoena duces tecum and his “requests for status check,” the motion is denied without 13 prejudice to renew after the respondents have filed their supplemental answer. 14 It is further ordered that petitioner’s July 10, 2017, request for status check and for 15 the State to produce evidence of a confession (ECF No. 34) and January 2, 2018, request 16 for status check and for this case to be heard (ECF No.40) are denied. 17 DATED THIS 7th day of March 2018. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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