Brown v. Neven et al

Filing 22

ORDER that, within sixty (60) days of entry of this order, respondents shall file a motion to dismiss restricted to exhaustion issues only. Signed by Judge Kent J. Dawson on 6/18/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BEAU EZEKIEL BROWN,
Petitioner,

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2:11-cv-00790-KJD-RJJ

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vs.

ORDER

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DWIGHT NEVEN, et al.
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review

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of the counseled amended petition under Rule 4 of the Rules Governing Section 2254 Cases.

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It appears from review of the amended petition that the exhaustion of certain claims

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is contingent upon the completion of proceedings on a second state post-conviction petition.

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The amended petition reflects that argument then was scheduled in the state district court for

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April 19, 2012. It thus would appear that it would be most efficient at this juncture to address

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any exhaustion and potentially-related stay issues prior to other issues in the case. The Court

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accordingly will direct the filing of a motion to dismiss restricted to exhaustion issues only,

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including any exhaustion issues pertaining to claims in the amended petition that are alleged

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to have been exhausted in prior proceedings. In this vein, if part of petitioner’s response will

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be to request a stay, petitioner must do so in a separate motion for that relief in the

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alternative, separate and apart from the opposition to the motion to dismiss.

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IT THEREFORE IS ORDERED that, within sixty (60) days of entry of this order,

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respondents shall file a motion to dismiss restricted to exhaustion issues only. All other

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issues in the case, including other procedural defenses, are deferred at this time. The

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omission of other defenses in the initial motion to dismiss filed in response to this order shall

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not provide a basis for waiver of defenses, as the Court expressly is limiting the response to

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only issues of exhaustion. Any motion to modify the procedure outlined in this order must be

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filed within thirty (30) days of entry of this order.1

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IT FURTHER IS ORDERED that any request for a stay to exhaust unexhausted claims

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must be sought by a separate motion, which may be sought in the alternative, separate and

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apart from any opposition to the motion to dismiss. For this case, any such motion for a

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stay shall be filed by the due date for the opposition to the motion to dismiss.

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IT FURTHER IS ORDERED that briefing will proceed on the motion to dismiss and any

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motion for a stay filed thereafter as per the standard schedule for same under the local rules.

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IT FURTHER IS ORDERED that both counsel shall apprise the Court of the then-

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current state of proceedings on the second state petition in each of their filings.
DATED: June 18, 2012

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_________________________________
KENT J. DAWSON
United States District Judge

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The Court is aware that respondents frequently file a m otion to dism iss based upon prem aturity
when state post-conviction proceedings are pending. Following screening review of the am ended petition,
the Court does not wish to delay the proceedings herein to take up a possible m otion to dism iss on the basis
of prem aturity, as the Court is not persuaded that the m atter is prem ature. If respondents intend to seek to
persuade the Court to proceed otherwise than as this order directs regarding an initial m otion to dism iss,
respondents m ust do so within thirty days. That is, respondents shall not wait until the expiration of the sixtyday deadline to seek to m aintain that the case should proceed differently. In short, the Court wants issue
joined on the potential issues of exhaustion and possible stay and abeyance sooner rather than later.

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