Edmisten v. Neven et al

Filing 33

ORDER granting 26 Motion to Vacate 17 Order; Respondents' motion to dismiss is denied as moot; Amended Petition due 60 days from entry of this order. Signed by Judge Richard F. Boulware, II on 3/29/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JUSTIN JAMES EDMISTEN,

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Petitioner,

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vs.

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Case No. 2:15-cv-00952-RFB-NJK

DWIGHT NEVEN, et al.,

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ORDER

Respondents.

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Before the court are petitioner’s motion to partially vacate March 21, 2017 order (ECF No. 26),

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respondents’ opposition (ECF No. 28), and petitioner’s reply (#31). Petitioner asks the court to vacate

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the determination that ground 1 is not exhausted and to allow him to file a counseled response to the

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motion to dismiss. Counsel still would be arguing off a proper-person petition. The better way to

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handle the matter is to allow counsel to file an amended petition. Respondents can raise all available

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procedural defenses to the amended petition, if they wish.

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IT IS THEREFORE ORDERED that petitioner’s motion to partially vacate March 21, 2017

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order (ECF No. 26) is GRANTED. The part of the court’s order of March 21, 2017 (ECF No. 17) that

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granted respondents’ motion to dismiss in part (ECF No. 14) is vacated.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss is DENIED as moot.

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IT IS FURTHER ORDERED that petitioner will have sixty (60) days from the date of entry of

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this order to file an amended petition for a writ of habeas corpus.

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///

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IT IS FURTHER ORDERED that neither the foregoing deadline nor any extension thereof

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signifies or will signify any implied finding of a basis for tolling during the time period established.

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Petitioner at all times remains responsible for calculating the running of the federal limitation period

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under 28 U.S.C. § 2244(d)(1) and timely asserting claims.

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DATED: March 29, 2018.

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_________________________________
RICHARD F. BOULWARE, II
United States District Judge

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