Smith v. Williams et al

Filing 40

ORDER Granting in part and Denying in part 37 Motion to Extend Time To Respond to re 23 Motion to Dismiss ; Denying 38 Motion to Appoint Counsel. Responses due by 11/5/2016. Signed by Judge Jennifer A. Dorsey on 10/5/2016. (Copies have been distributed pursuant to the NEF - DL) Modified on 10/5/2016 to correct text - (DL).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Robert Fitzgerald Smith,

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Petitioner

2:15-cv-00465-JAD-PAL
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Order Granting in Part and Denying in
Part Motion for Enlargment of Time
and Denying Ex Parte Motion for
Appointment of Counsel

v.
Brian Williams, et al.,

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Respondents

[ECF Nos. 37, 38]

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Section 2254 petitioner Robert Fitzgerald Smith requests a second extension of time to

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respond to respondents’ motion to dismiss.1 He explains that he needs additional time to obtain

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medical records, police reports, police statements, crime-scene reports, police photographs, 911

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recordings, witness statements, a statement of a bed-side interview, and a letter from an informant to

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properly respond to respondents’ dismissal challenge. Smith is incorrect. Respondents argue in their

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dismissal motion that the bulk of Smith’s claims are unexhausted, and the evidence Smith seeks is

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irrelevant to their exhaustion argument.

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Respondents do argue that Smith is presenting different facts in ground 6—a claim that the

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evidence was insufficient to sustain the conviction, and in ground 12—a claim in part that the trial

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court erred in admitting into evidence a letter from a jailhouse informant. But Smith does not need

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the actual records or letter to argue that he exhausted these claims and the facts supporting them. To

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show exhaustion, he must show that he alerted the Nevada Supreme Court to these facts in his

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appellate briefs. Smith can do that simply by reading the appellate briefs, which the respondents

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have provided in their exhibits to the dismissal motion. The four-month extension that Smith

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requests is unnecessary for the completion of this task. I therefore grant in part and deny in part

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Smith’s motion and give him only until November 5, 2016, to file his response.

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Smith has also filed an ex parte motion for appointment of counsel. But Smith provides no

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ECF No. 23.
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new argument that would cause me to reconsider and reverse my previous ruling denying his request

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for counsel, so I deny the motion.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Smith’s motion for enlargement of time [ECF

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No. 37] is GRANTED in part and DENIED in part: Smith’s response is due by November 5,

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2016.

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IT IS FURTHER ORDERED that Smith’s ex parte motion for appointment of counsel [ECF
No. 38] is DENIED.
Dated this 5th day of October, 2016
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Jennifer A. Dorsey
United States District Judge

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