Flanagan v. McDaniel

Filing 116

ORDER. IT IS ORDERED that 115 petitioner's Motion to Lift the Stay of Proceedings is GRANTED. See Order for details/deadlines. Signed by Judge Kent J. Dawson on 6/27/17. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

DALE EDWARD FLANAGAN,

10

Petitioner,

11

vs.

12

TIMOTHY FILSON, et al.,

13

Respondents.

14

)
)
)
)
)
)
)
)
)
)
/

2:09-cv-00085-KJD-GWF
ORDER

15

This capital habeas corpus action was stayed on August 23, 2012, pending the petitioner’s

16

exhaustion of claims in state court. ECF No. 100. On June 27, 2017, the petitioner, Dale Edward

17

Flanagan, filed a motion to lift the stay. ECF No. 115. In that motion, Flanagan states that the

18

state-court proceedings have concluded. The court will grant Flanagan's motion to lift the stay, and

19

will set a schedule for further litigation of this action.

20
21
22
23
24

IT IS THEREFORE ORDERED that petitioner's Motion to Lift the Stay of Proceedings (ECF
No. 115) is GRANTED. The stay of this action is lifted.
IT IS FURTHER ORDERED that the following schedule shall govern the further litigation of
this action:
1.

Amended Petition. If necessary, petitioner shall file and serve a second amended

25

petition for writ of habeas corpus within 60 days after entry of this order. The second amended

26

petition shall specifically state whether each ground for relief has been exhausted in state court; for

1

each claim that has been exhausted in state court, the second amended petition shall state how, when,

2

and where that occurred. If petitioner determines that a second amended petition need not be filed,

3

then, within 60 days after entry of this order, petitioner shall file and serve a statement to that effect.

4

2.

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

5

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

6

petition. If petitioner does not file a second amended petition, respondents shall have 60 days

7

following the due-date for the second amended petition to file and serve an answer or other response

8

to petitioner's first amended petition.

9

3.

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

10

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

11

reply to file and serve a response to the reply.

12

4.

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

13

shall have 60 days following service of the motion to file and serve a response to the motion.

14

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

15

5.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

motion for leave to conduct discovery.

23

6.

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

24

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

25

response to respondents' motion to dismiss or the reply to respondents' answer. Any motion for an

26

evidentiary hearing filed by petitioner before that time may be considered premature, and may be

2

1

denied, without prejudice, on that basis. The motion for an evidentiary hearing must specifically

2

address why an evidentiary hearing is required, and must meet the requirements of 28 U.S.C. §

3

2254(e). The motion must state whether an evidentiary hearing was held in state court, and, if so,

4

state where the transcript is located in the record. If petitioner files a motion for an evidentiary

5

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

6

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

7

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

8

evidentiary hearing.

9

DATED: June 27, 2017

10
11

_________________________________________
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

3