Dollar v. Smith et al

Filing 19

ORDER that respondents shall file a response to the amended petition within 60 days. Petitioner shall have 30 days from service of the answer to file a reply. Granting 14 Motion to Seal. Signed by Judge James C. Mahan on 8/6/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHRISTOPHER ADAM DOLLAR,

2:13-cv-01952-JCM-GWF

Petitioner,

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ORDER
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vs.

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GREGORY SMITH, et al.,
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Respondents.
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This habeas matter comes before the court for initial review of the counseled amended

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petition (#16) and further on upon petitioner’s motion (#14) to file under seal. Following

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review, a response is being ordered.

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IT THEREFORE IS ORDERED that respondents shall file a response to the amended

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petition, including potentially by motion to dismiss, within sixty (60) days of entry of this order.

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Any response filed shall comply with the remaining provisions below, which are

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entered pursuant to Habeas Rule 4.

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

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the counseled amended petition shall be raised together in a single consolidated motion to

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dismiss. In other words, the court does not wish to address any procedural defenses raised

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herein either in seriatum fashion in multiple successive motions to dismiss or embedded in

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the answer. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents shall not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C.

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§ 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single

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

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,

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623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall 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 shall

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

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record 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

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

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requests for relief by the parties by motion otherwise being subject to the normal briefing

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schedule under the local rules.

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IT FURTHER IS ORDERED that petitioner’s unopposed motion (#14) to file under seal

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is GRANTED, with the court finding, in accordance with the requirements of Kamakana v. City

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and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), that a compelling need to protect the

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privacy, safety, and personal identifying information of petitioner and others in the

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presentence report outweighs the public interest in access to court records.

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IT FURTHER IS ORDERED that any further hard copies of exhibits filed by either

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counsel shall be delivered – for this case – to the clerk's office in Reno. Any copies sent

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previously instead to Las Vegas, if any, need not be resent per this order.

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DATED: August 6, 2014.

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__________________________________
JAMES C. MAHAN
United States District Judge

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