STERLING ATKINS v. E.K. MCDANIEL (DEATH PENALTY)
Filing
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ORDER Denying 199 petitioner's Opposed Motion to Defer Filing of Motion for Evidentiary Hearing as unnecessary and moot. Signed by Judge James C. Mahan on 4/13/17. (Copies have been distributed pursuant to the NEF - ADR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STERLING ATKINS,
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Petitioner,
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vs.
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TIMOTHY FILSON et al.,
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2:02-cv-01348-JCM-PAL
Respondents.
ORDER
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In this capital habeas corpus action, the respondents filed a motion to dismiss on
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December 22, 2016 (ECF No. 192). The petitioner, Sterling Atkins, is due to respond to the motion
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to dismiss by April 21, 2017. See Order entered February 16, 2017 (ECF No. 198).
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On April 11, 2017, Atkins filed a motion entitled “Opposed Motion to Defer Filing of
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Motion for Evidentiary Hearing” (ECF No. 199). In that motion, Atkins states that, pursuant to the
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scheduling order entered on August 10, 2015 (ECF No. 167), he intends to file a motion for leave to
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conduct discovery with his response to the motion to dismiss, but that, on the other hand, he does not
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intend to file a motion for evidentiary hearing with his response to the motion to dismiss. Atkins
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requests that the time for him to file a motion for evidentiary hearing be deferred until after the
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motion to dismiss is resolved.
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Atkins’ motion appears to be premised on a misreading of the scheduling order. The
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scheduling order states: “If petitioner wishes to request an evidentiary hearing, petitioner shall file
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and serve a motion for an evidentiary hearing concurrently with, but separate from, the response to
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respondents’ motion to dismiss or the reply to respondents’ answer.” Order entered August 10, 2015
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(ECF No. 167), pp. 2-3. This provision allows a motion for evidentiary hearing to be filed with a
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response to a motion to dismiss or with a reply to an answer, or both. This provision is based on the
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court’s recognition that, depending on the case, a habeas petitioner may have reason to request an
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evidentiary hearing with respect to issues raised in a motion to dismiss, and that a habeas petitioner
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may also have reason to request an evidentiary hearing later, with respect to the merits of his claims.
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In cases in which the petitioner does not seek an evidentiary with respect to issues raised in a motion
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to dismiss -- such as this case, apparently -- the scheduling order still allows for the filing of a
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motion for evidentiary hearing, after resolution of the motion to dismiss, with the petitioner’s reply
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to the respondents’ answer.
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Therefore, in this case, whether or not Atkins files a motion for evidentiary hearing with his
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response to the motion to dismiss, the scheduling order provides that he may still file a motion for
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evidentiary hearing with his reply to respondents’ answer. Atkins’ motion is, therefore, unnecessary
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and moot, and will be denied on that ground.
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IT IS THEREFORE ORDERED that petitioner’s Opposed Motion to Defer Filing of
Motion for Evidentiary Hearing (ECF No. 199) is DENIED as unnecessary and moot.
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April 13, day of
Dated this _____2017. April, 2017.
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______________________________________
UNITED STATES DISTRICT JUDGE
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