Guerrero v. Williams et al

Filing 28

ORDER that, within 30 days of entry of this order, Petitioner shall file a verification of the 26 Second Amended Petition. IT FURTHER IS ORDERED that, within 60 days of entry of this order, Respondents shall respond by motion to dismiss. Petitioner shall have 30 days from service of the response to file an opposition. Signed by Judge Jennifer A. Dorsey on 01/23/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PABLO RAMON GUERRERO,

Case No. 2:13-cv-00328-JAD-CWH

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Petitioner,
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vs.

ORDER

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BRIAN E. WILLIAMS, et al.,
Respondents.

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This habeas matter comes before the Court for file review following upon the filing of
a second amended petition (Doc. 26).

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Review of the file reflects that: (a) while petitioner verified the first amended petition he

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has not yet done so as to the second amended petition; (b) respondents have not responded

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to the second amended petition within the time frame originally established by the initial

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scheduling order (Doc. 8); and (c) a trial transcript does not appear to be included with the

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state court record exhibits submitted (Doc. 27).

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The Court will establish a deadline for filing of a verification followed by a response to

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the second amended petition. In reviewing the pleading, it appears that an exhaustion issue

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is present on the face of the pleading as to all grounds except possibly Ground 11 and part

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of Ground 15 and that there additionally is a relation back issue at least as to Ground 22. The

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Court accordingly will restrict the initial response to these threshold issues.

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With regard to the trial transcript, petitioner challenges the sufficiency of the evidence

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on certain of the charges in Ground 1. It further is unlikely that the Court would be able to

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adjudicate all of the remaining 21 grounds without reference to the trial transcript. For

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example, a determination of whether a petitioner can demonstrate the requisite prejudice on

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a claim of ineffective assistance of trial counsel often requires an assessment of the impact

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of the alleged deficiency by counsel in the context of all of the trial evidence. The Court

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generally makes such determinations based upon the actual trial transcript as opposed to only

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excerpts from the transcript and/or representations as to the content of the record in prior

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briefs or court decisions.

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supplementation of the state court record exhibits until after addressing whether all of the

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claims will be reached on the merits at this juncture in this proceeding.

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However, the Court will defer consideration of possible

IT THEREFORE IS ORDERED that, within thirty (30) days of entry of this order,
petitioner shall file a verification of the second amended petition.

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

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respondents shall respond by motion to dismiss raising defenses, if any, based upon lack of

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exhaustion and/or failure of claims to relate back to a timely prior pleading. Consideration of

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all other defenses, including but not limited to procedural default, is deferred to a later

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response; and respondents shall not be deemed to have waived such defenses by omitting

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them from the initial response.

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

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the response to file an opposition, with the time for a reply memorandum by respondents

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thereafter being the standard deadline under the local rules.

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Dated:

January 23, 2014.

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___________________________________
JENNIFER A. DORSEY
United States District Judge

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