McClain v. Williams et al

Filing 53

ORDER. IT IS HEREBY ORDERED that Respondents file a response to the third amended petition, including potentially by motion to dismiss, within 90 days of the date of this order, with any requests for relief by Petitioner by motion otherwise being s ubject to the normal briefing schedule under the local rules. Any response filed shall comply with the remaining provisions below, which are entered pursuant to Habeas Rule 5. IT IS FURTHER ORDERED that any procedural defenses raised by Responden ts in this case be raised together in a single consolidated motion to dismiss. See Order for details. IT IS FURTHER ORDERED that, in any answer filed on the merits, Respondents specifically cite to and address the applicable state court written decision and state court record materials, if any, regarding each claim within the response as to that claim. IT IS FURTHER ORDERED that Petitioner has 45 days from service of the answer, motion to dismiss, or other response to file a reply or o pposition, with any other requests for relief by Respondents by motion otherwise being subject to the normal briefing schedule under the local rules. IT IS FURTHER ORDERED that any additional state court record exhibits filed herein by either Pet itioner or Respondents be filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments that are filed further are to be identified by the number of the exhibit in the attachment. IT IS FURTHER ORDERED that t he parties SEND courtesy copies of all exhibits in this case 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. Additionally, in the future, all parties must provide courtesy copies of any additional exhibits submitted to the court in this case, in the manner described above. Signed by Judge Richard F. Boulware, II on 8/3/2020. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:17-cv-00753-RFB-NJK Document 53 Filed 08/03/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CLIFFORD MCCLAIN,

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Case No. 2:17-cv-00753-RFB-NJK

Petitioner,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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Clifford McClain has now filed a third amended 28 U.S.C. § 2254 habeas corpus
petition (ECF No. 48).
IT IS THEREFORE ORDERED that Respondents file a response to the third

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amended petition, including potentially by motion to dismiss, within 90 days of the date

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of this order, with any requests for relief by Petitioner by motion otherwise being subject

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to the normal briefing schedule under the local rules. Any response filed shall comply

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with the remaining provisions below, which are entered pursuant to Habeas Rule 5.

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IT IS FURTHER ORDERED that any procedural defenses raised by

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Respondents in this case be raised together in a single consolidated motion to dismiss.

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In other words, the Court does not wish to address any procedural defenses raised

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herein either in seriatum fashion in multiple successive motions to dismiss or embedded

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

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to potential waiver. Respondents should not file a response in this case that

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

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pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.
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Case 2:17-cv-00753-RFB-NJK Document 53 Filed 08/03/20 Page 2 of 2

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If Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they
should do so within the single motion to dismiss not in the answer; and (b) they should
specifically direct their argument to the standard for dismissal under § 2254(b)(2) set
forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no
procedural defenses, including exhaustion, should be included with the merits in an
answer. All procedural defenses, including exhaustion, instead must be raised by
motion to dismiss.
IT IS FURTHER ORDERED that, in any answer filed on the merits, Respondents
specifically cite to and address the applicable state court written decision and state
court record materials, if any, regarding each claim within the response as to that claim.
IT IS FURTHER ORDERED that Petitioner has 45 days from service of the
answer, motion to dismiss, or other response to file a reply or opposition, with any other
requests for relief by Respondents by motion otherwise being subject to the normal
briefing schedule under the local rules.
IT IS FURTHER ORDERED that any additional state court record exhibits filed
herein by either Petitioner or Respondents be filed with a separate index of exhibits
identifying the exhibits by number. The CM/ECF attachments that are filed further are
to be identified by the number of the exhibit in the attachment.
IT IS FURTHER ORDERED that the parties SEND courtesy copies of all exhibits
in this case 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. Additionally, in
the future, all parties must provide courtesy copies of any additional exhibits submitted
to the court in this case, in the manner described above.

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DATED: August 3, 2020.
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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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