United States District Court, D. Nevada
JOSE E. SILVA, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
M. Navarro Chief 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 an appearance together with petitioner's motion (ECF
No. 09) for leave to file a first amended petition and motion
(ECF No. 10) requesting a scheduling order permitting
petitioner to file a second amended petition.
motions collectively seek to pursue a “two-step”
procedure whereby petitioner: (a) files an initial counseled
amended petition preserving all then-known claims potentially
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).
two-step procedure may be appropriate also in circumstances
where the federal limitation period perhaps may only recently
have putatively expired and counsel is seeking to cabin the
period of time as to which equitable tolling may need to be
sought. As noted below, the Court expresses no opinion as to
the putative expiration date of the limitation period in this
THEREFORE IS 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 IS ORDERED that petitioner's motion (ECF No. 9)
for leave to file a first amended petition is GRANTED and
that the Clerk of Court shall file the first amended petition
(ECF No. 9-1).
FURTHER IS ORDERED that the Clerk shall file the exhibits
submitted with the amended petition in a manner most
convenient to the Clerk, which potentially may include
leaving the exhibits docketed where they currently are with
ECF No. 9.
FURTHER IS ORDERED that petitioner's motion (ECF No. 10)
for a scheduling order is granted consistent with the
remaining provisions of this order.
FURTHER IS ORDERED that petitioner shall 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 IS ORDERED that: (a) respondents shall not be
required to respond to the first amended petition at this
time, but that (b) respondents shall 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,
shall be governed instead by the local rules.
FURTHER IS ORDERED that any procedural defenses raised by
respondents to the counseled amended petition shall 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
shall 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 IS ORDERED that the hard copy of any exhibits filed
by either counsel shall be delivered - for this ...