Green v. LeGrand et al
Filing
71
ORDER. Respondents have until December 6, 2021, to answer or otherwise respond to the first amended petition for writ of habeas corpus (ECF No. 69 ). Petitioner will then have 60 days from the date of service of an answer to file a reply brief. Any procedural defenses Respondents raise in this case must be raised together in a single consolidated motion to dismiss. Signed by Judge Andrew P. Gordon on 10/7/2021. (Copies have been distributed pursuant to the NEF - HAM)
1
UNITED STATES DISTRICT COURT
2
DISTRICT OF NEVADA
3
DUSHON NICHALOS GREEN,
4
5
6
v.
Case No. 2:14-cv-01388-APG-NJK
Petitioner,
ORDER
WARDEN GARRETT, et al.,
Respondents.
7
8
On May 15, 2017, this case was administratively closed while Petitioner Dushon Nichalos
9
Green exhausted his unexhausted claims in state court. ECF No. 62. Green completed his state-
10
court proceedings and filed a new federal habeas petition. 1 The court construed the new federal
11
habeas petition as a request to reopen this habeas case and file an amended petition. ECF No. 68.
12
As instructed, the Clerk of Court reopened this case, filed the new federal habeas petition in this
13
case, and designated it as Green’s first amended petition. ECF No. 69.
14
I THEREFORE ORDER:
15
1. Respondents have until December 6, 2021, to answer or otherwise respond to the first
16
amended petition for writ of habeas corpus (ECF No. 69), including any motion to dismiss.
17
2. Petitioner will then have 60 days from the date of service of an answer to file a reply brief.
18
However, the response and reply time to any motion filed by either party, including a
19
motion filed instead of a pleading, will be governed by Local Rule 7-2(b).
20
3. Any procedural defenses Respondents raise in this case must be raised together in a single
21
consolidated motion to dismiss. Procedural defenses omitted from such motion to dismiss
22
may be subject to waiver. Respondents will not file a response in this case that consolidates
23
their procedural defenses, if any, with their response on the merits, except pursuant to 28
24
U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents
25
seek dismissal of unexhausted claims under § 2254(b)(2), they must do so within the single
26
motion to dismiss, not in the answer, and specifically direct their argument to the standard
27
28
1
See Green v. Garrett, Case No. 3:21-cv-00078-MMD-CLB.
1
1
for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623–24
2
(9th Cir. 2005). In short, no procedural defenses, including exhaustion, will be included
3
with the merits in an answer. All procedural defenses, including exhaustion, instead must
4
be raised by motion to dismiss.
5
4. In any answer filed on the merits, Respondents must specifically cite to and address the
6
applicable state court written decision and state court record materials, if any, regarding
7
each claim within the response as to that claim.
8
9
10
5. Respondents must file the state court exhibits relevant to their response to the petition, in
chronological order.
6. All state court records and exhibits must be filed in accordance with LR IA 10-3, LR IC
11
2-2, and LSR 3-3, and include a separate index identifying each exhibit by number or
12
letter. The index must be filed in CM/ECF’s document upload screen as the base
13
document to receive the base docket number (e.g., ECF No. 10). Each exhibit must
14
then be filed as “attachments” to the base document—the index—to receive a
15
sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No.
16
10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more than one
17
filing, the base document in each successive filing must be either a copy of the index or
18
volume cover page. See LR IC 2-2(a)(3)(A).
19
7. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits—for this
20
case—need not be provided to chambers or to the staff attorney, unless later directed by
21
the court.
22
Dated: October 7, 2021
23
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?