DAVID BOLLINGER v. E.K. MCDANIEL, et al.

Filing 154

ORDERED that the Court sets a schedule for further litigation of this action. (See Order for details). Signed by Judge Roger L. Hunt on 4/3/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID BOLLINGER,

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Petitioner,

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vs.

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RENEE BAKER, et al.,

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Respondents.

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2:98-cv-1263-RLH-PAL
ORDER

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This order is issued pursuant to Federal Rule of Civil Procedure 16(b), the Rules Governing
Section 2254 Cases in the United States District Courts, and Local Rule 16-1.
This action is a petition for writ of habeas corpus brought by David Bollinger, a Nevada

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prisoner sentenced to death. Bollinger initiated this action on September 9, 1998. The action was

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stayed, upon a stipulation of the parties, on October 5, 2005, to allow Bollinger an opportunity to

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exhaust claims in state court. On March 12, 2012, the stay was lifted.

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On April 3, 2012, the court held a status conference. Counsel for petitioner and counsel for

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respondents appeared, and discussed the anticipated course of proceedings in this action. In light of

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the representations of counsel at the status conference, the court sets a schedule for further litigation

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of this action, as follows.

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IT IS ORDERED:

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Amended Petition. If necessary, petitioner shall file and serve an amended petition

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for a writ of habeas corpus on or before July 6, 2012. The amended petition shall contain

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all known grounds for relief, both exhausted and unexhausted. The amended petition shall

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specifically state whether each ground for relief has been exhausted in state court; for each claim that

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has been exhausted in state court, the amended petition shall state how, when, and where that

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occurred. If petitioner determines that an amended petition need not be filed, then, when the

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amended petition is due, petitioner shall file and serve a statement to that effect.

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2.

Response to Petition. Respondents shall have 60 days following service of the

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amended petition to file and serve an answer or other response to the amended petition. If petitioner

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does not file an amended petition, respondents shall have 60 days following the due-date for the

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amended petition to file and serve an answer or other response to the original petition.

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3.

Reply and Response to Reply. Petitioner shall have 45 days following service of

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an answer to file and serve a reply. Respondents shall thereafter have 30 days following service of a

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reply to file and serve a response to the reply.

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4.

Briefing of Motion to Dismiss. If respondents file a motion to dismiss, petitioner

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shall have 30 days following service of the motion to file and serve an opposition to the motion.

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Respondents shall thereafter have 30 days following service of the opposition to file and serve a

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reply.

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5.

Discovery. If petitioner wishes to move for leave to conduct discovery, petitioner

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shall file and serve such motion concurrently with, but separate from, the response to respondents’

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motion to dismiss or the reply to respondents’ answer. Any motion for leave to conduct discovery

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filed by petitioner before that time may be considered premature, and may be denied, without

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prejudice, on that basis. Respondents shall file and serve a response to any such motion concurrently

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with, but separate from, their reply in support of their motion to dismiss or their response to

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petitioner’s reply. Thereafter, petitioner shall have 20 days to file and serve a reply in support of the

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motion for leave to conduct discovery. If the court grants petitioner leave to conduct discovery, the

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court will then establish time limits for the completion of the authorized discovery.

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Evidentiary Hearing. If petitioner wishes to request an evidentiary hearing,

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petitioner shall file and serve a motion for an evidentiary hearing concurrently with, but separate

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from, the response to respondents’ motion to dismiss or the reply to respondents’ answer. Any

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motion for an evidentiary hearing filed by petitioner before that time may be considered premature,

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and may be denied, without prejudice, on that basis. The motion for an evidentiary hearing must

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specifically address why an evidentiary hearing is required, and must meet the requirements of

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28 U.S.C. § 2254(e). The motion must state whether an evidentiary hearing was held in state court,

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and, if so, state where the transcript is located in the record. If petitioner files a motion for an

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evidentiary hearing, respondents shall file and serve a response to that motion concurrently with, but

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separate from, their reply in support of their motion to dismiss or their response to petitioner’s reply.

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Thereafter, petitioner shall have 20 days to file and serve a reply in support of the motion for an

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evidentiary hearing.

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7.

Status Reports and Status Conferences. The court may from time to time, as the

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need arises, schedule status conferences, and/or require the filing and service of status reports, in

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order to manage the progress of this action.

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Dated this

3rd

day of April, 2012.

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UNITED STATES DISTRICT JUDGE
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