United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
the court are petitioner's reply to the court's order
and motion to withdraw the pending motion and to file a new
second amended petition (ECF No. 82), respondents' motion
to strike (ECF No. 83), petitioner's response (ECF No.
84), and respondents' reply (ECF No. 86). The court
grants petitioner's motion and denies respondents'
procedural history of this case has been difficult. The court
provisionally appointed the Federal Public Defender to
represent petitioner. ECF No. 5. The Federal Public Defender
had a conflict of interest. ECF No. 6. The court then
appointed William Gamage to represent petitioner. ECF No. 8.
The court stayed the case while petitioner completed his
post-conviction habeas corpus proceedings in state court. ECF
No. 20. The court then reopened the action upon
petitioner's motion. ECF No. 25. Gamage filed an amended
habeas corpus petition that alleged one claim, ineffective
assistance of trial counsel during the plea negotiations. ECF
No. 39. This petition was fully briefed, although petitioner
did not file a reply. Petitioner himself then filed
proper-person motions to remove Gamage, to have new counsel
appointed, and to stay the action, because he was displeased
that Gamage had dropped all his claims but one. ECF No. 51,
ECF No. 52, ECF No. 55. The court denied those motions
because petitioner needed to make them through counsel. ECF
No. 57. Petitioner then repeated his requests. ECF No. 59. By
this time, the court had learned that Gamage had suffered
some type of mental lapse, abandoned his clients, and
disappeared. The court removed Gamage as counsel. ECF No. 63.
The court then appointed Mary Lou Wilson. ECF No. 64. Wilson
filed a motion for leave to file a second amended petition,
which still is pending. ECF No. 71. Wilson then resigned from
the court's CJA panel. The court allowed her to withdraw
in this case. ECF No. 77. The court now had to appoint a
third--or fourth, if the Federal Public Defender is
counted--attorney to represent petitioner, Theresa
Ristenpart. ECF No. 78. Petitioner then filed a motion to
withdraw the pending motion for leave to amend and for leave
to file a new second amended petition. ECF No. 82.
did not attach a proposed second amended petition to the
motion. The court waives the requirements of Local Rule
15-1(a) that petitioner file a proposed amended petition.
Instead, petitioner should file a second amended petition.
Respondents then will need to file a response, including by
motion to dismiss that raises procedural defenses. If either
petitioner or respondents have scheduling conflicts, then
they should request additional time in later-filed actions,
to keep this action moving as expeditiously as possible.
THEREFORE IS ORDERED that petitioner's motion to withdraw
pending motion and to file new second amended petition (ECF
No. 82) is GRANTED.
FURTHER IS ORDERED that no further action be taken on the
pending motion for leave to file second amended petition (ECF
FURTHER IS ORDERED that respondents' motion to strike
(ECF No. 83) is DENIED.
FURTHER IS ORDERED that petitioner shall have until up to and
including sixty (60) days from entry of this order within
which to file an 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 always 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 respondents shall file a response to
the amended petition, including potentially by motion to
dismiss, within sixty (60) days of service of an amended
petition and that petitioner may file a reply within thirty
(30) days of service of an answer. 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
Local Rule LR 7-2(b).
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 serial 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, 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.
FURTHER IS ORDERED that, notwithstanding Local Rule LR IC
2-2(g), paper copies of any electronically filed exhibits
need not be provided to chambers or to the ...