Stark v. Baker et al

Filing 5

ORDER granting ECF No. 4 IFP application; directing Clerk to file petition; directing Clerk to e-serve NV AG with copy of petition, this order, and regenerated NEFs of remaining filings herein (NEFs sent 3/13/2018); giving Respondents 60 da ys to respond to petition. Any exhibits to be filed with separate index. Hard copies of any exhibits to be forwarded, for this case, to the Reno Clerk's Office. Petitioner to reply to Respondent's response within 60 days. Signed by Judge Richard F. Boulware, II on 3/12/2018. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 KENYON JAMES STARK, 9 10 Petitioner, Case No. 2:17-cv-00727-RFB-VCF ORDER vs. 11 12 13 BAKER, et al., Respondents. 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s 16 application (ECF No. 4) to proceed in forma pauperis and for initial review of the petition 17 under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”). 18 On the pauper application (ECF No. 4), the Court finds that petitioner is not able to pay 19 the filing fee within a reasonable time and therefore will grant the application. 20 Following initial review of the petition, the Court will direct a response. 21 IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 4) to proceed in 22 forma pauperis is GRANTED and that petitioner shall not be required to pay the filing fee. 23 IT FURTHER IS ORDERED that the Clerk of Court shall file the petition. 24 IT FURTHER IS ORDERED that the Clerk shall informally electronically serve the 25 Nevada Attorney General with a copy of the petition and this order, along with regenerated 26 notices of electronic filing of the remaining filings herein. 27 IT FURTHER IS ORDERED that respondents shall have sixty (60) days from entry 28 of this order within which to respond to the petition. Any response filed shall comply with the 1 remaining provisions below, which are tailored to this particular case based upon the Court's 2 screening of the matter and which are entered pursuant to Habeas Rule 4. 3 IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this 4 case shall be raised together in a single consolidated motion to dismiss. In other words, the 5 Court does not wish to address any procedural defenses raised herein either in seriatum 6 fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 7 defenses omitted from such motion to dismiss will be subject to potential waiver. 8 Respondents shall not file a response in this case that consolidates their procedural 9 defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) 10 as to any unexhausted claims clearly lacking merit. If respondents do seek dismissal of 11 unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to 12 dismiss not in the answer; and (b) they shall specifically direct their argument to the standard 13 for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 14 2005). In short, no procedural defenses, including exhaustion, shall be included with the 15 merits in an answer. All procedural defenses, including exhaustion, instead must be raised 16 by motion to dismiss. 17 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 18 specifically cite to and address the applicable state court written decision and state court 19 record materials, if any, regarding each claim within the response as to that claim. 20 IT FURTHER IS ORDERED that respondents shall file a set of state court exhibits 21 relevant to the response filed to the petition, in chronological order and indexed as discussed, 22 infra. 23 IT FURTHER IS ORDERED that all state court record exhibits filed herein shall be filed 24 with a separate index of exhibits identifying the exhibits by number. 25 attachments that are filed further shall be identified by the number or numbers of the exhibits 26 in the attachment. The purpose of this provision is so that the Court and any reviewing court 27 thereafter will be able to quickly determine from the face of the electronic docket sheet which 28 numbered exhibits are filed in which attachments. -2- The CM/ECF 1 2 IT FURTHER IS ORDERED that counsel additionally shall send a hard copy of all exhibits filed to, for this case, the Reno Clerk’s Office. 3 IT FURTHER IS ORDERED that petitioner shall have sixty (60) days from service of 4 the answer, motion to dismiss, or other response to mail a reply or response to the Clerk of 5 Court for filing. 6 IT FURTHER IS ORDERED that all requests for relief must be presented by a motion 7 satisfying the requirements of Rule 7(b) of the Federal Rules of Civil Procedure. The Court 8 and the Clerk do not respond to letters and do not take action based upon letters, other than 9 a request for a status check on a matter submitted for more than ninety days. Further, neither 10 11 the Court nor the Clerk can provide legal advice or instruction. DATED: March 12, 2018. 12 13 ________________________________ RICHARD F. BOULWARE, II United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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