Winston v. Myles et al

Filing 27

ORDER that the Federal Public Defender's Office is appointed as counsel with Megan C. Hoffman appearing as Petitioner's counsel of record. Petitioner shall have until up 120 days from entry of this Order to file an Amended Petition. Th e prior 24 Order is Modified in Part such that the hard copy of any exhibits filed by either counsel shall be delivered for this case to the Clerk's Office in Reno. Signed by Judge Jennifer A. Dorsey on 6/24/2014. (Copies have been distributed pursuant to the NEF - cc: CJA Clerk - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOY WINSTON,

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Case No. 2:12-cv-01844-JAD-CWH
Petitioner,
ORDER

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vs.

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CAROLYN MYLES, et al.,
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Respondents.
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This habeas matter comes before the Court following upon the notice (Doc. 26) of appearance
by petitioner’s counsel.

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IT THEREFORE IS ORDERED that the Federal Public Defender's Office is appointed as

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counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B), with Megan C. Hoffman, Esq.,

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appearing as petitioner’s counsel of record.

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IT FURTHER IS ORDERED that petitioner shall have until up to and including one hundred

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twenty (120) days from entry of this order within which to file an amended petition and/or seek other

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appropriate relief. Neither the foregoing deadline nor any extension thereof signifies or will signify

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any implied finding as to the expiration of the federal limitation period and/or of a basis for tolling

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during the time period established. Petitioner at all times remains responsible for calculating the

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running of the federal limitation period and timely asserting claims, without regard to any deadlines

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established or extensions granted herein. That is, by setting a deadline to amend the petition and/or by

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granting any extension thereof, the Court makes no finding or representation that the petition, any

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amendments thereto, and/or any claims contained therein are not subject to dismissal as untimely. See

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Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

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IT FURTHER IS ORDERED that respondents shall file a response to the amended petition,

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including potentially by motion to dismiss, within sixty (60) days of service of the amended petition,

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with any requests for relief by petitioner by motion otherwise being subject to the normal briefing

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schedule under the local rules. Any response filed shall comply with the remaining provisions

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below, which are entered pursuant to Habeas Rule 4.

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

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counseled amended petition shall be raised together in a single consolidated motion to dismiss. In other

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words, the Court does not wish to address any procedural defenses raised herein either in seriatum

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

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omitted from such motion to dismiss will be subject to potential waiver. Respondents shall 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 merit.

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If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within

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the single motion to dismiss not in the answer; and (b) they shall specifically direct their argument to

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the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th

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Cir. 2005). In short, no procedural defenses, including exhaustion, shall be included with the merits

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in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to

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dismiss.

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

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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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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for

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relief by the parties by motion otherwise being subject to the briefing schedule under the local rules.

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IT FURTHER IS ORDERED that any additional state court record exhibits filed herein by

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either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits

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by number. The CM/ECF attachments that are filed further shall be identified by the number or

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numbers of the exhibits in the attachment.
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The prior order (Doc. 24) is MODIFIED IN PART, such that the hard copy of any exhibits

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filed by either counsel shall be delivered – for this case – to the Clerk's Office in Reno. Any hard

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copies sent previously to Las Vegas need not be resent by counsel.

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The Clerk shall SEND a copy of this order to the CJA Coordinator for this division.

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Dated: June 24, 2014.

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__________________________________
UNITED STATES DISTRICT JUDGE

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