United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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.
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. 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.
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)). 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
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.
FURTHER ORDERED that counsel for Petitioner shall file an
amended petition within 60 days of the date of this
order. 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.
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
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.
 Counsel’s reasons for not
initially doing so are not persuasive.
 Ex. 31 is located at ECF No.
 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