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Garcia v. Williams

United States District Court, D. Nevada

September 23, 2019

SALVADORE GARCIA, Petitioner,
v.
BRIAN WILLIAMS SR., et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This is a counseled habeas petition pursuant to 28 U.S.C. § 2254 filed by Nevada state prisoner Salvadore Garcia. Respondents have moved to dismiss the pro se petition and to strike counsel’s supplemental brief, which counsel filed in lieu of amending the petition.

         When I appointed counsel, I granted a period of 90 days within which to “file an amended petition and/or seek other appropriate relief.” (ECF No. 9 at 1) (emphasis added). The order allowed counsel to file an amended petition without first moving for leave to do so but required counsel to seek any other relief, including leave to file a supplemental brief. Counsel did not seek such leave before filing the supplement. Furthermore, I am not in the practice of allowing freestanding supplements, particularly where the matters addressed in the instant supplement are more appropriately raised in direct response to the Respondents’ timeliness defense in an opposition to the motion to dismiss. For both reasons, the Respondents’ motion to strike the supplemental brief (ECF No. 14) is granted, and the supplemental brief (ECF No. 13) filed on November 8, 2018, will be stricken.

         In addition, the Respondents assert it is difficult to ascertain what claims Petitioner raises in his original pro se brief. I agree. The petition appears to raise several claims within each of its two grounds. In addition, much of the Petitioner’s argument is directed at his gateway claim of actual innocence, and it is unclear if any of the assertions is intended as a discrete claim. This is a problem that can be remedied by counsel filing an amended petition that clearly identifies the discrete claims for relief asserted in this case.[1] Accordingly, appointed counsel shall file an amended petition within 60 days of this order. In light of the forthcoming amended petition, the Respondents’ motion to dismiss will be denied without prejudice, to renew as to the amended petition within 60 days of its filing.

         Finally, it is evident from review of the trial transcript that not all relevant state court records have been filed with the court. Principally, the taped interviews of both Petitioner and the victim that were played for the jury during the trial have not been manually filed. (See Ex. 31 (Tr. 171 & 194-95 (playing and admitting Trial Exhibits 57 and 58)).[2] Petitioner has raised a gateway claim of actual innocence, which, if that question is reached, would require consideration of all evidence presented at trial along with Petitioner’s new evidence. It is therefore necessary for copies of these recordings to be filed with the court as part of the state court record. Within 60 days of the date of this order, Respondents shall manually file copies of these exhibits with the Las Vegas Clerk’s Office.

         In accordance with the foregoing, IT IS THEREFORE ORDERED that Respondents’ motion to strike (ECF No. 14) the supplement filed by counsel (ECF No. 13) is GRANTED, and the supplement filed on November 8, 2018, (ECF No. 13) is hereby STRICKEN. Respondents’ motion to dismiss (ECF No. 14) is DENIED WITHOUT PREJUDICE.

         IT IS FURTHER ORDERED that counsel for Petitioner shall file an amended petition within 60 days of the date of this order.[3] The amended petition shall clearly identify the claims Petitioner asserts in this action. Counsel is advised that, due to the length of time this action has been pending, extensions of time to file an amended petition are not likely to be granted absent a strong showing of good cause.

         IT FURTHER IS ORDERED that Respondents shall file a response to the amended petition, including potentially by motion to dismiss, within 45 days of service of the amended petition and that Petitioner may file a reply thereto within 30 days of service of the 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).

         IT FURTHER IS ORDERED that Respondents shall manually file copies of Exhibits 57 and 58 from Petitioner’s trial with the Las Vegas Clerk’s Office within 60 days of the date of this order.

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Notes:

[1] Counsel’s reasons for not initially doing so are not persuasive.

[2] Ex. 31 is located at ECF No. 15-24.

[3] Neither the foregoing deadline nor any extension thereof signifies any implied finding as to the expiration of the federal limitation period 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 or by granting any extension thereof, I make no finding or representation that the petition, any amendments ...


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