Moore v. Masto et al

Filing 51

ORDER. IT IS ORDERED that 48 Petitioner's Motion to Vacate Stay and Reopen Capital Habeas Proceedings is GRANTED. The stay of this action is lifted. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), William Gi ttere is substituted for Renee Baker as the respondent warden, and Aaron Ford is substituted for Adam Paul Laxalt as the respondent state attorney general. The clerk of the court shall update the docket for this case to reflect these changes. See Order for details/deadlines. Signed by Judge James C. Mahan on 2/5/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RANDOLPH L. MOORE,

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Petitioner,

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Case No. 2:13-cv-0655-JCM-CWH

v.

ORDER

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WILLIAM GITTERE, et al.,
Respondents.

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This capital habeas corpus action has been stayed since November 21, 2013, while

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the petitioner, Randolph L. Moore, exhausted claims in state court. See Order entered

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November 21, 2013 (ECF No. 31). On January 10, 2019, Moore, represented by appointed

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counsel, filed a motion to lift the stay (ECF No. 48). In that motion, Moore states that his

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state-court proceedings have concluded. On January 23, 2019, the respondents filed a notice

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(ECF No. 50) stating that they do not oppose the motion to lift the stay. The Court will grant

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Moore’s motion to lift the stay and will set a schedule for further proceedings in this action.

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The Court will also direct the clerk of the court to update the docket with respect to the
identities of the respondent warden and respondent state attorney general.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Vacate Stay and Reopen
Capital Habeas Proceedings (ECF No. 48) is GRANTED. The stay of this action is lifted.
IT IS FURTHER ORDERED that the following schedule shall govern the further
proceedings in this action:
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Amended Petition. Petitioner shall have 60 days from the date of this order to file

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a second amended petition for writ of habeas corpus. The second amended petition shall

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

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

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where that occurred.

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2.

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

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

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petition.

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3.

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

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

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of a reply to file and serve a response to the reply.

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4.

Briefing of Motion to Dismiss. If Respondents file a motion to dismiss, Petitioner

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

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

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reply.

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5.

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

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

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Respondents’ motion to dismiss or the reply to Respondents’ answer. Any motion for leave to

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conduct discovery filed by Petitioner before that time may be considered premature, and may be

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denied, without prejudice, on that basis. Respondents shall file and serve a response to any such

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

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their response to Petitioner’s reply. Thereafter, Petitioner shall have 20 days to file and serve a

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reply in support of the motion for leave to conduct discovery.

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6.

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

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

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from, the response to Respondents’ motion to dismiss or the reply to Respondents’ answer. Any

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motion for an evidentiary hearing filed by Petitioner before that time may be considered

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premature, and may be denied, without prejudice, on that basis. The motion for an evidentiary

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hearing must specifically address why an evidentiary hearing is required and must meet the

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requirements of 28 U.S.C. § 2254(e). The motion must state whether an evidentiary hearing was

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held in state court, and, if so, state where the transcript is located in the record. If Petitioner files
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a motion for an evidentiary hearing, Respondents shall file and serve a response to that motion

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

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response to Petitioner’s reply. Thereafter, Petitioner shall have 20 days to file and serve a reply

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in support of the motion for an evidentiary hearing.

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IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d),

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William Gittere is substituted for Renee Baker as the respondent warden, and Aaron Ford is

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substituted for Adam Paul Laxalt as the respondent state attorney general. The clerk of the court

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shall update the docket for this case to reflect these changes.

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DATED February day of ______________________, 2019.
THIS ___ 5, 2019.

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JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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