Owens v. Williams

Filing 16

ORDER. IT IS ORDERED that the Federal Public Defender, through Jason F. Carr, is appointed as counsel for petitioner. IT IS FURTHER ORDERED that petitioner shall have until up to and including one hundred twenty (120) days from entry of this order within which to file an amended petition and/or seek other appropriate relief. IT IS FURTHER ORDERED that the hard copy of any exhibits filed by either counsel shall be delivered - for this case - to the Reno Clerk's Office. See Order for details/deadlines. Signed by Judge Richard F. Boulware, II on 9/6/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA
***

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JACKIE OWENS,

Petitioner,

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Case No. 2:16-cv-00400-RFB-PAL

vs.

ORDER

BRIAN WILLIAMS, et al.,

Respondents.

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Following upon the entry of appearance (ECF No. 13) by the Federal Public
Defender,
IT IS ORDERED that the Federal Public Defender, through Jason F. Carr, is appointed
as counsel for petitioner pursuant to 18 U.S.C. ' 3006A(a)(2)(B). Counsel will represent
petitioner in all federal proceedings related to this matter, including any appeals or

certiorari proceedings, unless allowed to withdraw.
IT IS FURTHER ORDERED that petitioner shall have until up to and including one
hundred twenty (120) days from entry of this order within which to file an amended
petition and/or seek other appropriate relief. Neither the foregoing deadline nor any

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extension thereof signifies or will signify any implied finding as to the expiration of the

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federal limitation period and/or 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

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limitation period and timely asserting claims, without regard to any deadlines established

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or extensions granted herein. That is, by setting a deadline to amend the petition and/or

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by granting any extension thereof, the Court makes no finding or representation that the

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petition, any amendments thereto, and/or any claims contained therein are not subject to

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

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IT IS FURTHER ORDERED that respondents shall file a response to the amended

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petition, including potentially by motion to dismiss, within sixty (60) days of service of an

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amended petition and that petitioner may file a reply within thirty (30) days of service of

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an answer. The response and reply time to any motion filed by either party, including a

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motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b).

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IT IS FURTHER ORDERED that B for this particular case B if respondents seek the
dismissal of the petition as a successive petition, they shall present that defense
separately in a motion to dismiss without then also raising other possible defenses.
While the Court generally disfavors serial presentation of procedural defenses, for this
particular case, it would prefer to take up and consider any successive petition issue raised
by respondents prior to any consideration of any other issues in the case.
IT IS FURTHER ORDERED that any other procedural defenses raised by respondents

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to the counseled amended petition, thereafter, shall be raised together in a single

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consolidated motion to dismiss.

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successive petition defense, the Court does not wish to address any such procedural

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defenses either in seriatum fashion in multiple successive motions to dismiss or

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embedded in the answer. Procedural defenses omitted from a motion to dismiss pursuant

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to this particular paragraph will be subject to potential waiver. Respondents shall not file

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a response in this case that consolidates their procedural defenses, if any, with their

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response on the merits, except pursuant to 28 U.S.C. ' 2254(b)(2) as to any unexhausted

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claims clearly lacking merit. If respondents do seek dismissal of unexhausted claims under

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' 2254(b)(2): (a) they shall do so within the single motion to dismiss not in the answer;

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and (b) they shall specifically direct their argument to the standard for dismissal under '

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2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no

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

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

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dismiss, subject to the preceding paragraph herein.

In other words, as to any defenses other than a

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IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents shall

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specifically cite to and address the applicable state court written decision and state court

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record materials, if any, regarding each claim within the response as to that claim.

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IT IS FURTHER ORDERED that any state court record and related exhibits filed

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herein by either petitioner or respondents shall be filed with a separate index of exhibits

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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. If the exhibits
filed will span more than one ECF Number in the record, the first document under each
successive ECF Number shall be either another copy of the index, a volume cover page,
or some other document serving as a filler, so that each exhibit under the ECF Number
thereafter will be listed under an attachment number (i.e., Attachment 1, 2, etc.).
IT IS FURTHER ORDERED that the hard copy of any exhibits filed by either counsel
shall be delivered B for this case B to the Reno Clerk's Office.

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DATED: September 6, 2018.

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_________________________________
RICHARD F. BOULWARE, II
United States District Judge

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