United States District Court, D. Nevada
MELANIE A. OCHS, Petitioner,
WARDEN JO GENTRY, et al., Respondents.
C. MAHAN UNITED STATES DISTRICT JUDGE
the court are respondents' motion for leave of court to
file second motion to dismiss (ECF No. 38), petitioner's
opposition (ECF No. 42), and respondents' reply (ECF No.
45). The court denies respondents' motion because the
court informed respondents that it would entertain only one
motion to dismiss. However, the court finds no indication in
the scheduling order or otherwise that respondents have
waived that defense. Respondents may raise a limitation
defense in their answer.
original petition, petitioner alleged a span of time, between
the end of her post-conviction proceedings in state court and
the mailing of her federal petition, that alone exceeded the
one-year period of limitation of 28 U.S.C. § 2244(d)(1).
ECF No. 4, at 1. Along with that petition, petitioner sent
a motion to compel production of the prison's mail
records, to show that she never received anything from
post-conviction counsel informing her of the conclusion of
her state post-conviction proceedings. The court denied that
motion because the court was appointing counsel to represent
petitioner, and counsel could file any necessary motions. ECF
No. 7, at 1. The court also informed the parties that
timeliness likely would be an issue. Id.
petitioner filed her amended petition, the court directed
respondents to file an answer or other response. The court
told respondents to raise all available procedural defenses
in one motion to dismiss. ECF No. 19, at 2. Respondents filed
a motion to dismiss. ECF No. 20. Respondents did not raise a
defense that the action was untimely, nor did they make any
statements about the statute of limitations. The court
rejected the arguments that respondents did make, denied the
motion to dismiss, and directed respondents to file an
answer. ECF No. 26. Nine months later, after several
extensions of time, respondents filed not an answer but the
motion for leave to file a second motion to dismiss.
and 5 of the Rules Governing Section 2254 Cases in the United
States District Courts have some tension. Rule 5(b) states:
The answer must address the allegations in the petition. In
addition, it must state whether any claim in the petition is
barred by a failure to exhaust state remedies, a procedural
bar, non-retroactivity, or a statute of limitations.
Advisory Committee notes to the 2004 amendments state:
The revised rule does not address the practice in some
districts, where the respondent files a pre-answer motion to
dismiss the petition. But revised Rule 4 permits that
practice and reflects the view that if the court does not
dismiss the petition, it may require (or permit) the
respondent to file a motion.
Rule 4, in turn, states in relevant part, "If the
petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
order." This court has developed a practice of
instructing the respondents to file a motion to dismiss,
prior to filing an answer, that raises procedural defenses
such as non-exhaustion, procedural default, and untimeliness.
The court benefits from that practice because it can dismiss
grounds subject to those defenses without needing to review
the merits. The court also has developed a practice of
instructing the respondents to raise all the potentially
available procedural defenses in one motion to dismiss.
Respondents may not file a second motion to dismiss
a court has ordered otherwise, separate motions to dismiss
may be filed asserting different affirmative defenses."
Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir.
2005). The court did order respondents to raise all their
procedural defenses in one motion. ECF No. 19, at 2. That
order disposes of respondents' request. Respondents may
not file a second motion to dismiss.
The court's scheduling order did not cause a waiver of