Banark v. Adams et al

Filing 5

ORDER. IT IS HEREBY ORDERED that 1 Banark's application to proceed in forma pauperis is GRANTED, and 3 his motion for copies is DENIED as moot. The Clerk of Court is directed to FILE and electronically SERVE 1 -1 Banark's petition on respondents and add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. IT IS FURTHER ORDERED that respondents must respond to the petition by 1/31/16. Signed by Judge Jennifer A. Dorsey on 11/1/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Lonnie Lee Banark,
2:16-cv-01948-JAD-PAL

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Petitioner

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Order Granting Application to Proceed
in forma pauperis, Denying Motion for
Copies as Moot, Directing Service on
Respondents, and Setting Briefing
Schedule

v.
Warden Adams, et al.,

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Respondents
[EC Nos. 1, 3]

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Nevada state-prison inmate Lonnie Lee Banark has submitted a § 2254 petition along with an

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application to proceed in forma pauperis and a motion for return of all documents he filed in another

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case he filed with this court. Because Banark’s IFP application and supporting documents show that

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he is unable to pay the filing fee, I grant his application to proceed in forma pauperis and screen his

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petition under Rule 4 of the Rules Governing § 2254 Cases. Because it is not clear from the face of

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Banark’s petition that he is not entitled to relief, I instruct the Clerk to file the petition and

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electronically serve it on respondents, and I order the respondents to file a response by January 31,

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2016.
2017.

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Banark is cautioned that his petition should include all claims that he believes entitle him to

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federal habeas relief. If Banark is aware of a claim that he did not include in his petition, he should

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request leave to file an amended petition to add that claim as soon as possible. Because I granted

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Banark’s motion for the same copies he requests now in another case,1 I deny his motion for copies

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as moot.

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Case No. 2:15-cv-02505-JAD-CWH at ECF No. 18.
Page 1 of 3

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Banark’s application to proceed in forma

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pauperis [ECF No. 1] is GRANTED, and his motion for copies [ECF No. 3] is DENIED as moot.

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The Clerk of Court is directed to FILE and electronically SERVE Banark’s petition [ECF

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No. 1-1] on respondents and add Adam Paul Laxalt, Nevada Attorney General, as counsel for

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respondents.

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IT IS FURTHER ORDERED that respondents must respond to the petition by January 31,

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2016.
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1.

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Any procedural defenses must be raised together in a single consolidated motion to
dismiss. Any procedural defenses not raised in the motion may be subject to waiver.

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Respondents must not consolidate their procedural defenses, if any, with their

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response on the merits, except under 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
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under § 2254(b)(2): (a) they must do so in a dismissal motion, not the answer; and (b)
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they must direct their argument to the standard for dismissal under § 2254(b)(2) set

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

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state-court decision and record materials, if any, that pertain to each claim.

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Banark will have 45 days from service of the response to file a reply or opposition.
All other requests for relief by respondents or Banark will be subject to the normal

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briefing schedule under this court’s local rules.

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In any answer filed on the merits, respondents must cite to and address the applicable

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Any additional state-court record exhibits filed by either party must be filed with a

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separate index of exhibits identifying the exhibits by number. Any CM/ECF

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attachments must be identified by the number of the exhibit in the attachment.

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6.

The parties must send courtesy copies of all exhibits to the Clerk of Court, 400 S.
Virginia St. Reno, NV, 89501, Attention “Staff Attorney.”

Dated: November 1, of October, 2016
Dated this 31st day 2016.

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Jennifer A. Dorsey
ifer A Dorsey
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United States District Judge
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