Warenback v. Neven et al

Filing 10

ORDER that the Clerk shall file and electronically serve the 1 -2 Petition on the Respondents. Respondents shall file a response to the remaining grounds of the Petition within 90 days of service of the Petition. Any procedural defenses raised by respondents in this case shall be raised together in a single consolidated motion to dismiss. The parties shall send courtesy copies of all exhibits to the Reno Division of this court. Petitioner's 8 Motion to Extend Time to Pay the Filing Fee is Granted nunc pro tunc. Petitioner's 7 Motion for Court to Order NDOC to Process Filing Fee is Denied as moot. Signed by Judge Andrew P. Gordon on 1/4/2016. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

DOUGLAS HARRY WARENBACK,

7

Case No. 2:15-cv-01789-APG-VCF

Plaintiff,

ORDER

v.
8
D.W. NEVEN, et al.,
9
Defendants.
10
11

Before the court is a pro se petition for writ of habeas corpus pursuant to 28

12

U.S.C. § 2254, submitted by Douglas Harry Warenback, a Nevada state prisoner (Dkt. #

13

1-2). He has now paid the filing fee (see Dkt. #9). The court has reviewed the petition,

14

which sets forth five grounds for relief, pursuant to Habeas Rule 4. As discussed below,

15

ground 1 must be dismissed, and the petition shall be docketed and served on

16

respondents.

17

In the section of the court’s habeas form for ground 1, Warenback merely recites

18

some of the state procedural history of his cases (Dkt. #1-2, p. 3). He also states that

19

“this ground was exhausted in the petition for a writ of mandamus [with the] Nevada

20

Supreme Court . . . . see attached decision.” Id. The Nevada Supreme Court order

21

Warenback provides appears to deny two petitions for writ of mandamus requesting:

22

(1) the retrieval of audio recordings of lower court hearings for forensic comparison with

23

transcripts; and (2) that the district court be directed to hold a hearing regarding whether

24

trial counsel transmitted case files to petitioner. Id. at 20. First, ground 1 states no

25

discernible supporting facts, in contravention to Habeas Rule 2. Nor does ground 1

26

appear to implicate federal habeas corpus, as this court may entertain a petition for writ

27

of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State

28

court only on the ground that he is in custody in violation of the Constitution or laws or
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

treaties of the United States.” 28 U.S.C. § 2254(a). Accordingly, ground 1 is dismissed.
The petition shall be docketed and served on respondents.
A petition for federal habeas corpus should include all claims for relief of which
petitioner is aware. If petitioner fails to include such a claim in his petition, he may be
forever barred from seeking federal habeas relief upon that claim.

See 28 U.S.C.

§2254(b) (successive petitions). If petitioner is aware of any claim not included in his
petition, he should notify the court of that as soon as possible, perhaps by means of a
motion to amend his petition to add the claim.
IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (Dkt. #1-2) on the respondents.
IT IS FURTHER ORDERED that respondents shall file a response to the
remaining grounds of the petition, including potentially by motion to dismiss, within
ninety (90) days of service of the petition, with any requests for relief by petitioner by
motion otherwise being subject to the normal briefing schedule under the local rules.
Any response filed shall comply with the remaining provisions below, which are entered
pursuant to Habeas Rule 5.
IT IS FURTHER ORDERED that any procedural defenses raised by respondents
in this case shall be raised together in a single consolidated motion to dismiss. In other
words, the court does not wish to address any procedural defenses raised herein either
in seriatum fashion in multiple successive motions to dismiss or embedded in the
answer. Procedural defenses omitted from such motion to dismiss will be subject to
potential waiver. Respondents shall not file a response in this case that consolidates
their procedural defenses, if any, with their response on the merits, except pursuant to
28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.

If

respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall
do so within the single motion to dismiss not in the answer; and (b) they shall
specifically direct their argument to the standard for dismissal under § 2254(b)(2) set

28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

In short, no

procedural defenses, including exhaustion, shall be included with the merits in an
answer.

All procedural defenses, including exhaustion, instead must be raised by

motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents
shall specifically cite to and address the applicable state court written decision and state
court record materials, if any, regarding each claim within the response as to that claim.
IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from
service of the answer, motion to dismiss, or other response to file a reply or opposition,
with any other requests for relief by respondents by motion otherwise being subject to
the normal briefing schedule under the local rules.
IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either petitioner or respondents shall be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further shall
be identified by the number or numbers of the exhibits in the attachment.
IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all
exhibits to the Reno Division of this court. While the Local Rules provide that parties
should send paper courtesy copies of filings over fifty pages, in this instance,
courtesy copies may be in paper form or as PDF documents saved to a CD–so
long as each PDF is clearly identified by exhibit number. Courtesy copies shall be
mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the
attention of “Staff Attorney” on the outside of the mailing address label. Additionally, in
the future, all parties shall provide courtesy copies of any additional exhibits submitted
to the court in this case, in the manner described above.
IT IS FURTHER ORDERED that petitioner’s motion to extend time to pay the
filing fee (Dkt. #8) is GRANTED nunc pro tunc.

27
28
3

1
2

IT IS FURTHER ORDERED that petitioner’s motion for court to order NDOC to
process filing fee (Dkt. #7) is DENIED as moot.

3
4

DATED: 4 January 2016.

5
6

ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4