United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 comes before the
Court following upon the Federal Public Defender's entry
of a notice of appearance (ECF No. 9) together with
petitioner's motion for leave to file a first amended
petition (ECF No. 10), motions for leave to file index of
exhibits in support of first amended petition (ECF Nos. 11,
12 & 13), and motion for a scheduling order (ECF No. 14).
motions collectively seek to pursue a “two-step”
procedure whereby petitioner: (a) files an initial counseled
amended petition preserving all then-known claims free of
possible relation-back issues; and (b) thereafter potentially
files a second amended petition after petitioner's
newly-appointed federal habeas has had a full opportunity to
independently investigate all potential claims. The Court
expressly has authorized such a “two-step”
procedure in prior cases, and it does so here. See, e.g.,
McMahon v. Neven, No. 2:14-cv-00076-APG-CWH, ECF No. 29
(D. Nev., May 29, 2014)(approving and explaining the
Court's rationale in allowing a bifurcated amendment
procedure in habeas cases where the limitation period
potentially may expire before federal habeas counsel would be
able to conduct a complete investigation).
therefore ordered that the Federal Public Defender, through
Megan C. Hoffman, Esq., is appointed as counsel for
petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B).
Counsel will represent petitioner in all federal proceedings
related to this matter, including any appeals or
certiorari proceedings, unless allowed to withdraw.
further ordered that petitioner's motion for leave to
file a first amended petition (ECF No. 10) is granted.
further ordered that the Clerk of Court file the first
further ordered that petitioner's motions for leave to
file index of exhibits in support of first amended petition
(ECF Nos. 11, 12 and 13) are granted. The Clerk will file the
exhibits in a manner most convenient to the Clerk, which
potentially may include leaving the exhibits docketed where
they currently are along with the now-cleared motions.
further ordered that petitioner's motion for a scheduling
order (ECF No. 14) is granted consistent with the remaining
provisions of this order.
further ordered that petitioner will have until up to and
including ninety (90) days from entry of this order within
which to file a second amended petition and/or seek other
appropriate relief. Neither the foregoing deadline nor any
extension thereof signifies or will signify any implied
finding as to the expiration of the federal limitation period
and/or of a basis for tolling during the time period
established. Petitioner at all times remains responsible for
calculating the running of the federal limitation period and
timely asserting claims, without regard to any deadlines
established or extensions granted herein. That is, by setting
a deadline to amend the petition and/or by granting any
extension thereof, the Court makes no finding or
representation that the petition, any amendments thereto,
and/or any claims contained therein are not subject to
dismissal as untimely. See Sossa v. Diaz, 729 F.3d
1225, 1235 (9th Cir. 2013).
further ordered that: (a) respondents will not be required to
respond to the first amended petition at this time, but that
(b) respondents must file a response to the petition, as then
amended, either within sixty (60) days of service of a second
amended petition if filed or instead within sixty (60) days
of the final expiration of the time to do so if petitioner
does not file a second amended petition; and (c) petitioner
may file a reply within thirty (30) days of service. The
response and reply time to any motion filed by either party,
including a motion filed in lieu of a pleading, will be
governed instead by the local rules.
further ordered that any procedural defenses raised by
respondents to the counseled amended petition must be raised
together in a single consolidated motion to dismiss. In other
words, the Court does not wish to address any procedural
defenses raised herein either in seriatum fashion in
multiple successive motions to dismiss or embedded in the
answer. Procedural defenses omitted from such motion to
dismiss will be subject to potential waiver. Respondents must
not file a response in this case that consolidates their
procedural defenses, if any, with their response on the
merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to
any unexhausted claims clearly lacking merit. If respondents
do seek dismissal of unexhausted claims under §
2254(b)(2): (a) they shall do so within the single motion to
dismiss not in the answer; and (b) they shall specifically
direct their argument to the standard for dismissal under
§ 2254(b)(2) set forth in Cassett v. Stewart,
406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural
defenses, including exhaustion, shall be included with the
merits in an answer. All procedural defenses, including
exhaustion, instead must be raised by motion to dismiss.
further ordered that, in any answer filed on the merits,
respondents must specifically cite to and address the
applicable state court written decision and state court
record materials, if any, regarding each claim within the
response as to that claim.
further ordered that the hard copy of any exhibits filed by
either counsel must be delivered - for this ...