Garner v. Cox et al

Filing 37

ORDER Granting 36 Motion to Extend Time re 32 Motion to Dismiss (Second Request). Responses due by 1/12/2018. Signed by Judge James C. Mahan on 11/16/2017. (Copies have been distributed pursuant to the NEF - MR)

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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
C.B. KIRSCHNER
Assistant Federal Public Defender
Pennsylvania State Bar No. 92998
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
[phone]
[phone] (fax)
[e-mail]

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Attorney for Petitioner Edward Garner

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EDWARD EUGENE GARNER,
Petitioner,

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v.

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JAMES COX, et al.,
Respondents.

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Case No. 2:15-cv-02430-JCM-CWH
UNOPPOSED MOTION FOR
EXTENSION OF TIME TO FILE AN
OPPOSITION TO RESPONDENTS’
MOTION TO DISMISS
(Second Request)

Petitioner, Edward Garner, by and though counsel, C.B. Kirschner, Assistant
Federal Defender, moves this Court for an extension of time of sixty (60) days from

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November 14, 2017, to and including January 12, 2018, to file an Opposition to

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Respondents’ Motion to Dismiss. This motion is based upon the attached points and

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authorities and all pleadings and papers on file herein.

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POINTS AND AUTHORITIES

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On September 29, 2010, Edward Garner was sentenced to a lifetime

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term of incarceration with parole eligibility after ten (10) years, following his

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conviction for robbery with use of a deadly weapon. On or about December 15, 2015,

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he filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by

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a Person in State Custody (Not Sentenced to Death). ECF No. 1-1.

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2.

On April 26, 2016, this Court appointed the Office of the Federal

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Public Defender as counsel for Mr. Garner. ECF No. 5. Counsel for Garner filed an

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Amended Petition for Writ of Habeas Corpus on December 12, 2016. ECF No. 15.

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Respondents filed a Motion to Dismiss on September 1, 2017. ECF No. 32.

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Petitioner’s Opposition to the Motion to Dismiss is currently due

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November 14, 2017. Mr. Garner now requests an additional sixty (60) days, up to

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and including January 12, 2018, to file the Opposition. This is the second request

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for an extension of time.

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4.

The additional period of time is necessary in order to effectively

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represent Mr. Garner. This motion is filed in the interests of justice and not for the

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purposes of unnecessary delay.

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5.

Unfortunately, undersigned counsel’s busy schedule necessitates this

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extension request. Counsel has completed the following filings within the past two

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months: September 14, 2017, Application for Certificate of Appealability with the

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Ninth Circuit Court of Appeals in Lane v. Neven, No. 17-16746; September 25,

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2017, Petition for Writ of Certiorari with the United States Supreme Court in

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Rangel v. Neven; September 28, 2017, Reply to Answer in Moore v. LeGrand, case

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no. 3:13-cv-00390-LRH-WGC; October 10, 2017, First Amended Petition for Writ of

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Habeas Corpus in Posey v. Neven, case no. 2:15-cv-01482-RFB-GWF; October 11,

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2017, Application for Certificate of Appealability with the Ninth Circuit Court of

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Appeals in Coleman v. LeGrand, No. 17-16902; October 31, 2017, Petition for Writ

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of Habeas Corpus (Post-Conviction) filed with the Eight Judicial District Court of

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Nevada in Yaag v. Baker, case no. 08C241992; and November 6, 2017, First

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Amended Petition for Writ of Habeas Corpus in Sanchez-Dominguez v. Baker, case

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no. 3:17-cv-00053-HDM-WGC. Counsel also had a two-day business trip to Ely,

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Nevada in order to meet with clients being housed at Ely State Prison from October

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13 to October 14, 2017.

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6.

Additionally, counsel currently has eleven upcoming filing deadlines on

various habeas cases, including a First Amended Petition for Writ of Habeas Corpus

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in Fields v. Baker, case no. 3:16-cv-00298-MMD-VPC, due November 17, 2017.

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Counsel will also be out of the country on a previously scheduled vacation from

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December 1 to December 6, 2017.

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7.

On November 9, 2017, Chief Deputy Attorney General Heidi Stern was

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contacted via email and stated that she did not object to the extension, but the lack

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of objection should not be construed as a waiver of any procedural defenses.

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8.

For the above stated reasons, Petitioner respectfully requests this

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Court grant the request for an extension of time of sixty (60) days and order the

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Opposition to be filed on or before January 12, 2018.

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Dated this 14th day of November, 2017.
Respectfully submitted,
FEDERAL PUBLIC DEFENDER
DISTRICT OF NEVADA

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/s/ CB Kirschner

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C.B. KIRSCHNER
Assistant Federal Defender

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IT IS SO ORDERED:

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____________________________________
UNITED STATES DISTRICT JUDGE
November 16, 2017
DATED: ____________________

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CERTIFICATE OF SERVICE

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I hereby certify that on November 14, 2017, I electronically filed the foregoing

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with the Clerk of the Court for the United States District Court, District of Nevada

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by using the CM/ECF system.

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Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system and include: Heidi Stern

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I further certify that some of the participants in the case are not registered

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CM/ECF users. I have mailed the foregoing documents by First-Class Mail, postage

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pre-paid, or have dispatched it to a third party commercial carrier for delivery within

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three calendar days, to the following non-CM/ECF participants:

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Edward Eugene Garner, #75917
Ely State Prison
P.O. Box 1989
Ely, NV 89301

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/s/ Adam Dunn

An Employee of the
Federal Public Defender

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