Wilson v. Nevada Department of Corrections et al

Filing 6

ORDER that the Clerk shall electronically serve the 4 amended petition for Writ of Habeas Corpus. Respondents have until 9/24/2017 to file a response to the petition including any motion to dismiss. Petitioner has 45 days from service of the a nswer, motion to dismiss, or other response to file his reply or opposition. The hard copy of any additional state court record exhibits must be forwarded to the Staff Attorney in Reno. Signed by Judge Jennifer A. Dorsey on 6/26/2017. (Copies have been distributed pursuant to the NEF - cc: Traci Plotnick - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DELARIAN K. WILSON,

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Case No. 2:16-cv-02989-JAD-GWF

Petitioner
v.

ORDER

NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
Respondents
Pro se petitioner Delarian K. Wilson brings this habeas petition under 28 U.S.C. §

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2254 to challenge his 2008 state-court convictions pursuant to a guilty plea for robbery

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with the use of a weapon and sexual assault. The court has reviewed the amended

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petition (ECF No. 4) in accordance with Habeas Rule 4, and now orders that the petition

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be docketed and served on the respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

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IT IS THEREFORE ORDERED that the Clerk shall ELECTRONICALLY SERVE

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the amended petition (ECF No. 4) on the respondents and add Adam Paul Laxalt,

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Nevada Attorney General, as counsel for respondents.

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IT IS FURTHER ORDERED that the respondents have until September 24,
2017, to file a response to the petition—including any motion to dismiss. 1 Any

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1 Any other request by petitioner for relief by motion is subject to the normal briefing
schedule under the local rules.

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response filed must comply with these requirements imposed under Habeas Rule
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1. Any procedural defenses raised by respondents in this case must be raised
together in a single, consolidated motion to dismiss. In other words, the court
does not wish to address any procedural defenses raised herein either in
seriatum fashion in multiple successive motions to dismiss or embedded in the

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answer. Procedural defenses omitted from the motion to dismiss will be subject

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to potential waiver.

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2. Respondents must not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to

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28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If

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respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a)

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they must do so within the single motion to dismiss, not in the answer; and (b)

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they must 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).

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In short, no procedural defenses, including exhaustion, should be included with

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the merits in an answer. All procedural defenses, including exhaustion, instead

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must be raised by motion to dismiss.

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3. In any answer filed on the merits, respondents must specifically cite to and address

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the applicable state-court written decision and state-court record materials, if any,

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regarding each claim within the response as to that claim.

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IT IS FURTHER ORDERED that petitioner has 45 days from service of the

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answer, motion to dismiss, or other response to file his reply or opposition; any

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other requests for relief by respondents by motion are subject instead to the normal

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briefing schedule under the local rules.

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IT IS FURTHER ORDERED that any additional state-court record exhibits filed in
this case by any party must be filed with a separate index of exhibits identifying the
exhibits by number. The CM/ECF attachments that are filed must be identified by the
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number or numbers of the exhibits in the attachment. The hard copy of any additional
state court record exhibits (and all future courtesy copies of exhibits) must be forwarded
to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention of
“Staff Attorney” on the outside of the mailing address label.
DATED: June 26, 2017.

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JENNIFER A. DORSEY
R A. DORSEY
ORS Y
UNITED STATES DISTRICT JUDGE
STATES DISTRICT J
ATES
T
RIC

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