Mortensen v. Nevens et al

Filing 177

ORDER granting 175 Motion to Extend Time Re: 176 Amended Petition for Writ of Habeas Corpus. IT IS ORDERED that respondents must file a response to the fourth amended petition within 60 days of entry of this order. Signed by Judge Kent J. Dawson on 2/16/2022. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:11-cv-00266-KJD-DJA Document 177 Filed 02/25/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RONALD LAWRENCE MORTENSEN,

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Petitioner,

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Case No. 2:11-cv-00266-KJD-DJA
ORDER

v.
DWIGHT D. NEVEN, et al.,

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Respondents.

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This is a habeas corpus action under 28 U.S.C. § 2254. Petitioner has filed an unopposed

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motion for extension of time. ECF No. 175. The court finds that good cause exists to grant this

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motion. Petitioner also has filed a fourth amended petition. ECF No. 176. The court has

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reviewed the fourth amended petition under Rule 4 of the Rules Governing Section 2254 Cases in

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the United States District Courts. Respondents will need to file a response to the fourth amended

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petition.

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IT THEREFORE IS ORDERED that petitioner's unopposed motion for extension of time
(ECF No. 175) is GRANTED.
IT FURTHER IS ORDERED that respondents must file a response to the fourth amended

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petition (ECF No. 176), including potentially by motion to dismiss, within 60 days of entry of this

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order and that petitioner may file a reply within 30 days of service of an answer. The response

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Case 2:11-cv-00266-KJD-DJA Document 177 Filed 02/25/22 Page 2 of 2

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and reply time to any motion filed by either party, including a motion filed in lieu of a pleading,

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will be governed instead by Local Rule LR 7-2(b).

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the

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petition must be raised together in a single consolidated motion to dismiss. In other words, the

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court does not wish to address any procedural defenses raised herein either in serial fashion in

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multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted

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from such motion to dismiss will be subject to potential waiver. Respondents must not file a

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response in this case that consolidates their procedural defenses, if any, with their response on the

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merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking

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merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must

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do so within the single motion to dismiss not in the answer; and (b) they must specifically direct

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their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406

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F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may be

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included with the merits in an answer. All procedural defenses, including exhaustion, instead

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must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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DATED: February 16, 2022

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______________________________
KENT J. DAWSON
United States District Judge

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