Melendez v. Neven

Filing 44

ORDER that 42 Motion for Leave to File a First-Amended Petition and 43 Motion for Leave to File a Second-Amended Petition are GRANTED. The Clerk of Court is directed to DETACH and FILE Melendez's first amended petition. FURTHER ORDERED th at Melendez has until June 8, 2018, to file a second-amended petition. FURTHER ORDERED that 16 Motion to Dismiss is DENIED as moot in light of this order. FURTHER ORDERED that respondents DO NOT yet have to respond to the first-amended petition. Signed by Judge Jennifer A. Dorsey on 3/8/2018. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
Manuel Melendez,

4

Case No.: 2:15-cv-02076-JAD-VCF

Petitioner

5
6

v.

7

Order Granting Motions for Leave to File
a First- and Second-Amended Petition; and
Denying as Moot Respondents’ Motion to
Dismiss

Dwight Neven, et al.,

[ECF Nos. 16, 42, 43]

Respondents

8
9
10

I previously granted petitioner Manuel Melendez’s motion for appointment of counsel

11 and appointed the Federal Public Defender to represent him in his pursuit of a writ of habeas
12 corpus under 28 U.S.C. § 2254. 1 I also directed Melendez to respond to the pending dismissal
13 motion or file a notice that he intends to amend his petition. 2 Melendez intends to amend his
14 petition, and he moves for leave to file a first-amended petition and, potentially, a second15 amended petition after his counsel has had an opportunity to investigate Melendez’s claims. 3
16

Basically, Melendez wants to file an initial, counseled amended petition, preserving all

17 then-known claims and avoiding relation-back issues, and he wants preemptive leave to file a
18 potential second-amended petition after his newly appointed counsel has had a full opportunity
19 to investigate all of his claims. This two-step process has been authorized before in this district, 4
20 and I find that it is appropriate in this case.
21
22
23
24
25

1

ECF Nos. 39, 41.

2

ECF No. 41.

3

ECF Nos. 42, 43.

4
See, e.g., McMahon v. Neven, Case No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev. May
26 29, 2014) (approving and explaining the court’s rationale in allowing a bifurcated amendment
in habeas cases
before
27 procedureable to conduct awhere the limitation period may expire opinionfederal habeas counsel
would be
complete investigation). I express no
as to the putative
expiration date of the limitation period in this case.
28

1

Accordingly, IT IS HEREBY ORDERED that Melendez’s motions for leave to file a

1

2 first-amended petition [ECF No. 42] and for leave to file a second-amended petition [ECF No.
3 43] are GRANTED.
The Clerk of Court is directed to DETACH and FILE Melendez’s first-amended

4

5 petition [ECF No. 42-21].
IT IS FURTHER ORDERED that Melendez has until June 8, 2018, to file a second-

6

7 amended petition. I make no implied finding regarding the expiration of the federal limitation
8 period or a basis for tolling until this deadline. Melendez at all times remains responsible for
9 calculating the running of the federal limitation period and timely asserting claims, without
10 regard to any deadlines established in this order. By setting a deadline to amend the petition, I
11 make no finding or representation that the petition, its amendments, or its claims are not subject
12 to dismissal as untimely. 5
IT IS FURTHER ORDERED that respondents’ motion to dismiss the original petition

13

14 [ECF No. 16] is DENIED as moot in light of this order. 6
IT IS FURTHER ORDERED that respondents DO NOT yet have to respond to the

15

16 first-amended petition. If Melendez files a second-amended petition, respondents will have 60
17 days from the date of service to respond to it. If Melendez chooses not to file a second18 amended petition, then respondents will have until August 6, 2018, to respond to the first19 amended petition. Melendez will have 30 days from the date of service of a response to reply.
20 The local rules govern the briefing schedule for all motions, including motions that are filed in
21 lieu of a pleading.
22 Dated: March 8, 2018
_______________________________
U.S. District Judge Jennifer A. Dorsey

23
24
25
26

5

27

6

See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir .2013).

See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989)
(“[A]n amended pleading supersedes the original.”).
28
2