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17-106 - Ellis v. Atencio et al


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17-106 - Ellis v. Atencio et al
January 29, 2018
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MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion for Summary Dismissal (Dkt. 10) is GRANTED IN PART, and Claims 1 and 3 of the Petition are DISMISSED with prejudice. The Motion is denied without prejudice in remaining part to allow Petitioner to respond to this Order.2. Claims 2 and 4 of the Petition are procedurally defaulted, and the Courtdoes not have before it sufficient evidence to conclude that the cause andprejudice or actual innocence exception applies to excuse the default ofthese claims. Petitioner may respond to this Order within 28 days, settingforth any reason why his procedurally defaulted claims should be heard onthe merits. If Petitioner does not file a response, or if the response does not establish cause and prejudice or actual innocence, Claims 2 and 4 will be dismissed for the reasons stated in this Order. 3. Respondent may reply to Petitioners response within 14 days after service of any such response. 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 (cjs)