Willing v. Williams et al.

Filing 76

ORDER Granting Petitioner's 75 Motion to Reopen Case. IT IS FURTHER ORDERED that as the stay is lifted by this order the Clerk shall reopen the file in this action. Respondents shall file a response to the 48 second amended petition within 90 days of the date of this order. Signed by Judge Richard F. Boulware, II on 2/1/2019. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

NICHOLAS JAMES WILLING,

9

Case No.: 2:14-cv-01194-RFB-CWH

Petitioner,
ORDER

10 v.
11 BRIAN E. WILLIAMS, SR., et al.,
12

Respondents.

13
14

This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On

15 June 22, 2017, this court granted a stay and administratively closed petitioner Nicholas James
16 Willing’s federal habeas corpus action while he litigated his state petition (ECF No. 59).
17 Willing’s further state-court proceedings have concluded, and he has now returned to this court
18 seeking to reopen this case (ECF No. 75). Good cause appearing, this action is reopened.
19

IT IS THEREFORE ORDERED that petitioner’s motion to reopen this action (ECF

20 No. 75) is GRANTED.
21

IT IS FURTHER ORDERED that, as the stay is lifted by this order, the Clerk shall

22 REOPEN THE FILE in this action.
23

1

IT IS FURTHER ORDERED that respondents shall file a response to the second-

2 amended petition (ECF No. 48), including potentially by motion to dismiss, within 90 days of the
3 date of this order, with any requests for relief by petitioner by motion otherwise being subject to
4 the normal briefing schedule under the local rules. Any response filed shall comply with the
5 remaining provisions below, which are entered pursuant to Habeas Rule 5.
6

IT IS FURTHER ORDERED that any procedural defenses raised by respondents in this

7 case shall be raised together in a single consolidated motion to dismiss. In other words, the court
8 does not wish to address any procedural defenses raised herein either in seriatum fashion in
9 multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted
10 from such motion to dismiss will be subject to potential waiver. Respondents shall not file a
11 response in this case that consolidates their procedural defenses, if any, with their response on
12 the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly
13 lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a)
14 they shall do so within the single motion to dismiss not in the answer; and (b) they shall
15 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in
16 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses,
17 including exhaustion, shall be included with the merits in an answer. All procedural defenses,
18 including exhaustion, instead must be raised by motion to dismiss.
19

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

20 specifically cite to and address the applicable state court written decision and state court record
21 materials, if any, regarding each claim within the response as to that claim.
22

IT IS FURTHER ORDERED that petitioner shall have 45 days from service of the

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

2

1 for relief by respondents by motion otherwise being subject to the normal briefing schedule
2 under the local rules.
3

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

4 by either petitioner or respondents shall be filed with a separate index of exhibits identifying the
5 exhibits by number. The CM/ECF attachments that are filed further shall be identified by the
6 number of the exhibit in the attachment. Any further exhibits filed shall also follow
7 sequentially after the exhibits already filed (see ECF No. 53).
8
9

DATED: February 1, 2019

10

_________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23

3