Burton Jr v. Williams et al

Filing 22

ORDER granting 12 Motion to Extend Time. Attorney General of the State of Nevada answer due 90 days from entry of this Order; Brian Williams answer due 90 days from entry of this Order; granting 14 Motion to Extend Time. Petitioner shall have 30 days from service of answer to file reply. Signed by Judge Andrew P. Gordon on 10/11/16 nunc pro tunc 7/25/2016 for 12 and 8/23/2016 for 14 . (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 THAYER JOSEPH BURTON, JR., ) ) Petitioner, ) ) vs. ) ) BRIAN WILLIAMS, et al., ) ) Respondents. ) ____________________________________/ 2:16-cv-00521-APG-NJK ORDER 14 15 On September 13, 2016, petitioner filed an amended petition for writ of habeas corpus in this 16 action under 28 U.S.C. § 2254. ECF No. 15. Accordingly, the court shall schedule further 17 proceedings. 18 IT IS THEREFORE ORDERED that respondents shall file a response to the amended 19 petition (ECF No. 15), including potentially a motion to dismiss, within ninety (90) days of the date 20 of this order, with any requests for relief by petitioner by motion otherwise being subject to the 21 normal briefing schedule under the local rules. Any response filed shall comply with the 22 remaining provisions below, which are entered pursuant to Habeas Rule 4. 23 IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this 24 case shall be raised together in a single consolidated motion to dismiss. Procedural defenses omitted 25 from such motion to dismiss will be subject to potential waiver. Respondents shall not file a 26 response in this case that consolidates their procedural defenses, if any, with their response on the 1 merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking 2 merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do 3 so within the single motion to dismiss not in the answer; and (b) they shall specifically direct their 4 argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 5 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be 6 included with the merits in an answer. All procedural defenses, including exhaustion, instead must 7 be raised by motion to dismiss. 8 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 9 specifically cite to and address the applicable state court written decision and state court record 10 materials, if any, regarding each claim within the response as to that claim. 11 IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the 12 answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for 13 relief by respondents by motion otherwise being subject to the normal briefing schedule under the 14 local rules. 15 IT FURTHER IS ORDERED that any additional state court record exhibits filed herein by 16 either petitioner or respondents shall be filed with a separate index of exhibits identifying the 17 exhibits by number. The CM/ECF attachments that are filed further shall be identified by the 18 number or numbers of the exhibits in the attachment. The hard copy of any additional state court 19 record exhibits shall be forwarded – for this case – to the staff attorneys in Reno. 20 IT IS FURTHER ORDERED that petitioner’s motions for an extension of time within 21 which to file an amended petition (ECF Nos. 12 and 14) are GRANTED nunc pro tunc as of their 22 respective filing dates. 23 Dated this 11th day of October, 2016. 24 25 26 UNITED STATES DISTRICT JUDGE 2

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