United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
court notes at the outset that no courtesy copies-except as
specified at the conclusion of this order-are required in
this case at this time.
the court is petitioner Matthew Washington's motion for
leave to file a second-amended § 2254 petition for a
writ of habeas corpus. On June 11, 2019, Megan Hoffman of the
Federal Public Defender's Office appeared on behalf of
petitioner and also filed a first-amended petition (ECF Nos.
9, 10, 10-1). Contemporaneously, she filed a motion for leave
to file a second-amended petition on behalf of petitioner
(ECF No. 11). Washington explains that the first-amended
petition was filed without the FPD having a full opportunity
to examine all potential claims. Washington acknowledges that
he was unable to comply with Local Rule 15-1(a) (providing
that “unless the court orders otherwise, ” the
party must attach the proposed amended pleading to the motion
seeking leave amend) and attach a proposed second-amended
petition due to the recent appointment of counsel. The FPD
argues that it will best serve the interests of judicial
economy and justice if she has the opportunity to consider
all claims and to streamline, omit or add claims as
appropriate. Good cause appearing, the motion is granted.
Petitioner at all times remains responsible for properly
exhausting his claims and for calculating the running of the
federal limitation period as applied to his case.
IS THEREFORE ORDERED that petitioner's motion
for leave to file a first-amended petition (ECF No. 10) is
GRANTED. The Clerk shall DETACH and FILE the
first-amended petition (ECF No. 10-1).
IS FURTHER ORDERED that petitioner's motion for
leave to file a second-amended petition (ECF No. 11) is
GRANTED. Petitioner shall file and serve his
second-amended petition within 120 days of
the date of this order.
IS FURTHER ORDERED that respondents shall have
45 days after service of an amended petition
within which to answer, or otherwise respond to, the amended
petition. If petitioner does not file an amended petition,
respondents shall have 45 days from the date on which the
amended petition is due within which to answer, or otherwise
respond to, petitioner's original petition. Any response
filed shall comply with the remaining provisions below, which
are entered pursuant to Habeas Rule 5.
IS FURTHER ORDERED that any procedural defenses
raised by respondents in this case 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.
IS FURTHER ORDERED that, in any answer filed on the
merits, respondents shall 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.
IS FURTHER ORDERED that petitioner shall have
45 days from service of the answer, motion
to dismiss, or other response to file a reply or opposition,
with any other requests for relief by respondents by motion
otherwise being subject to the normal briefing schedule under
the local rules.
IS FURTHER ORDERED that any state court record
exhibits filed by the parties herein shall be filed with an
index of exhibits identifying the exhibits by number or
letter. The CM/ECF attachments that are filed shall further
be identified by the number or letter of the exhibit in the
IS FURTHER ORDERED that, at this time, the parties
shall send courtesy copies of any responsive pleading
or motion and all INDICES OF EXHIBITS ONLY to the
Reno Division of this court. Courtesy copies shall be mailed
to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501,
and directed to the attention of “Staff Attorney”
on the outside of the ...