Moxley v. Neven et al

Filing 58

ORDER Denying 57 Motion to Extend Time.Respondents shall have until 12:00 noon on 8/8/2011 to file an opposition to 54 Motion to stay. Petitioner shall have until 12:00 noon on 8/12/2011 to file a reply. Signed by Judge Roger L. Hunt on 8/3/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JOHN TOLE MOXLEY,
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Petitioner,

2:07-cv-01123-RLH-GWF

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vs.

ORDER

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DWIGHT NEVEN, et al.
Respondents.

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This nearly four-year old represented habeas matter comes before the Court on

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respondents’ motion (#57) for enlargement of time to respond to petitioner’s motion for a stay.

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The Court acknowledges at the very outset that its own delays have contributed to the

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age of this case. At the same time, however, the Court repeatedly has emphasized to

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counsel – as far back as November 2009 – of the need to move the case to a conclusion with

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dispatch and that requests for extension of time therefore would be considered only in

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extraordinary circumstances. #39, at 8; #42, at 15; #47, at 5; #50, at 1-2. The Court’s most

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recent order made this point once again emphatically:

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Extension of the deadlines established herein will be
considered in only the most extraordinary of circumstances.
#53, at 10 (bold emphasis in original).

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In the present motion and affidavit, respondents’ counsel states that “[d]ue to the

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numerous state and federal cases on my caseload, I have been unable, with the use of due

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diligence, to timely file a response to petitioner’s [motion].”

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Counsel has not shown extraordinary circumstances. In normal circumstances, even

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without an express order from this Court, counsel with the Attorney General and with the

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Federal Public Defender generally should seek extensions of time in younger cases before

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older cases. Longer pending cases need to be triaged through to a conclusion ahead of

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younger cases. A failure to triage older cases to a conclusion ahead of younger cases results

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in cases being pushed against up the 3-year reporting deadline under the Civil Justice Reform

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Act (CJRA). When cases are pushed up against the deadline, the Court increasingly must

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make case management decisions that are – as to procedure – driven more than usual by

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time concerns. The semiannual case reporting deadlines under the CJRA – each and every

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year – are March 31st and September 30th. The impending CJRA deadline in this case –

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which already has been carried over on two prior CJRA reports – thus is September 30, 2011,

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less than 60 days away.

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If petitioner’s motion for a stay, arguendo, were to be denied, the Court then would

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need to give petitioner another opportunity to make an election as to the relief to be requested

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as to the unexhausted claim. The Court simply does not have the time left in this case to rule

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on the present motion for a stay, provide another such opportunity as described above if

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necessary, and then resolve the merits of the remaining claims while at the same time

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extending counsel’s deadlines along the way.

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Counsel, again, has failed to show extraordinary circumstances. To the extent that

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counsel has conflicting duties in other cases in this Court and absent extraordinary

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circumstances, he should seek extensions of time in cases that were filed later than this case.

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Given the advanced age of this case, situations where the present case is the younger case

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likely are few and far between.

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The fact that the motion is unopposed and is only the first requested extension of the

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present deadline is of no moment. Under the express order of this Court, counsel instead

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must show “the most extraordinary of circumstances.” He has not done so.

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The extension motion therefore will be denied, but the Court will extend the deadline
a short interval. Both counsel should note the remaining provisions of this order.
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IT THEREFORE IS ORDERED that respondents’ motion (#57) for enlargement of time

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is DENIED. Respondents shall have until 12:00 noon on Monday, August 8, 2011, within

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which to file an opposition to petitioner’s motion for a stay. The provisions of Local Rule 7-

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2(d) shall apply to a failure to timely file an opposition to the motion.

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IT FURTHER IS ORDERED that petitioner shall have until 12:00 noon on Friday,
August 12, 2011, within which to file a reply.

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IT FURTHER IS ORDERED that – from this point forward in this case – counsel must

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comply with all deadlines established in this matter even if they file a motion for an extension

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of time, unless the Court grants the motion before the expiration of the deadline. That is,

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counsel may not rely upon the mere pendency of a motion for extension of time in not

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responding to a deadline. If the Court has not entered an order extending the deadline, the

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deadline remains in full force and effect.

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NO EXTENSIONS OF TIME WILL BE GRANTED TO THE DEADLINES

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ESTABLISHED BY THIS ORDER. IF COUNSEL OF RECORD IS UNABLE TO COMPLY

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WITH THE DEADLINES, HE MUST ASSOCIATE COUNSEL WITHIN HIS OFFICE

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CAPABLE OF COMPLYING WITH THE DEADLINE.

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DATED: August 3, 2011.

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_______________________________
ROGER L. HUNT
United States District Judge

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