Carley v. NDOC/FMWCC et al

Filing 95

ORDER. IT THEREFORE IS ORDERED that petitioner's motion for leave to file fourth amended petition (ECF No. 93 ) is GRANTED. Petitioner must file the fourth amended petition and exhibits within 7 days of the date of entry of this order. IT FURT HER IS ORDERED that respondents must file a response to the petition, including potentially by motion to dismiss, within 60 days of entry of this order and that petitioner may file a reply within 30 days of service of an answer. See Order for additional information. Signed by Judge James C. Mahan on 11/30/2021. (Copies have been distributed pursuant to the NEF - YAW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ELIZABETH K. CARLEY, a.k.a.
MELISSA ARIAS,

ORDER
Petitioner,

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Case No. 2:14-cv-02097-JCM-BNW

v.
JO GENTRY, et al.,
Respondents.
Petitioner has filed a motion for leave to file fourth amended petition, which includes the

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information that petitioner has received through discovery. ECF No. 93. Respondents do not

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oppose the motion. ECF No. 94. The court grants the motion and sets a briefing schedule.

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IT THEREFORE IS ORDERED that petitioner's motion for leave to file fourth amended

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petition (ECF No. 93) is GRANTED. Petitioner must file the fourth amended petition and

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exhibits within 7 days of the date of entry of this order.

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IT FURTHER IS ORDERED that respondents must file a response to the petition,

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including potentially by motion to dismiss, within 60 days of entry of this order and that

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petitioner may file a reply within 30 days of service of an answer. The response and reply time to

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any motion filed by either party, including a motion filed in lieu of a pleading, will be governed

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instead by Local Rule LR 7-2(b).

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

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petition must be raised together in a single consolidated motion to dismiss. In other words, the

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court does not wish to address any procedural defenses raised herein either in serial fashion in

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multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted

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from such motion to dismiss will be subject to potential waiver. Respondents must not file a

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response in this case that consolidates their procedural defenses, if any, with their response on the

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merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking

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merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must

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do so within the single motion to dismiss not in the answer; and (b) they must specifically direct

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their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406

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F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may 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 must

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

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materials, if any, regarding each claim within the response as to that claim.

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DATED: November 30, 2021.

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______________________________
JAMES C. MAHAN
United States District Judge

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