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Ochs v. Gentry

United States District Court, D. Nevada

August 23, 2019

MELANIE A. OCHS, Petitioner,
v.
WARDEN JO GENTRY, et al., Respondents.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         In the 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.[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.

         After 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.

         Rules 4 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.

         The 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.

         II. Discussion

         A. Respondents may not file a second motion to dismiss

         "Unless 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.

         B. The court's scheduling order did not cause a waiver of ...


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