Opinion
No. 3:09-0252.
July 14, 2009
ORDER
Before the Court is the respondent's motion to dismiss (Docket Entry No. 12), the petitioner's motion for summary judgment (Docket Entry No. 17), and the respondent's motion to expand the record (Docket Entry No. 15).
For the reasons explained in the accompanying memorandum, the respondent's motion to dismiss (Docket Entry No. 12) is DENIED in part and GRANTED in part. The respondent's motion to dismiss the petitioner's claim rising under Blakely v. Washington, 542 U.S. 296 (2004) is DENIED. The respondent shall respond to the merits of the petitioner's Blakely claim within thirty (30) days of the date of entry of this order. The respondent's motion to dismiss the petitioner's ineffective assistance of counsel claims as procedurally defaulted is GRANTED.
The petitioner's motion for summary judgment (Docket Entry No. 17) is DENIED. The petitioner's motion for summary judgment on his Blakely claim is DENIED as premature. The petitioner may renew his motion for summary judgment on this issue after the respondent responds to the merits of his Blakely claim. The petitioner's motion for summary judgment on his ineffective assistance claims is DENIED, because those claims are procedurally defaulted.
The petitioner has moved the court to instruct the respondent to file nine (9) documents that the respondent did not provide as part of the record of the state court proceedings in the petitioner's case. (Docket Entry No. 15) The documents at issue all pertain to the petitioner's efforts to present his Blakely claim to the state appellate courts. (Docket Entry No. 15, pp. 4-14; No. 16, Attach. Ex.) The respondent is directed to respond to the petitioner's motion to expand the record not later than July 31, 2009. The Court will HOLD IN ABEYANCE its decision on the petitioner's motion to expand the record (Docket Entry No. 15) until after the respondent has responded to the motion.
It is so ORDERED.