Marks v. Williams et al

Filing 11

ORDER. IT IS ORDERED that 9 petitioner's Motion to Partially Waive Local Rule IA 10-3(e) is GRANTED. IT IS FURTHER ORDERED that 10 petitioner's Motion for Leave to File a Second Amended Petition is GRANTED. IT IS FURTHER ORDERED t hat the Petitioner shall file the Second Amended Petition and serve a second amended petition for writ of habeas corpus within 120 days after entry of this order. See Order for further deadlines. Signed by Judge James C. Mahan on 7/3/17. (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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JOHN JOEY MARKS,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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2:17-cv-01413-JCM-PAL

Respondents.

ORDER

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_________________________________/

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In this habeas corpus action, brought pursuant to 28 U.S.C. § 2254, the Court appointed

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counsel for the petitioner, John Joey Marks. See Order entered June 1, 2017 (ECF No. 3). Counsel

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-- the Federal Pubic Defender for the District of Nevada -- appeared for Marks on June 21, 2017

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(ECF No. 6). The respondents have also appeared (ECF No. 5).

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On June 23, 2017, with counsel, Marks filed a first amended petition (ECF No. 7). Marks

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also filed a motion (ECF No. 10) requesting leave of court to file a second amended habeas petition.

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Marks’ counsel explains that they filed the first amended petition soon after their appointment, to

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protect against the running of the statute of limitations with respect to certain claims, but they wish

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to have 120 days to examine the record and determine if other claims exist, and file a second

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amended petition, before respondents respond. The Court will grant this motion.

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On June 23, 2017, Marks also filed a motion (ECF No. 9) requesting a waiver, for purposes

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of this case, of Local Rule IA 10-3(e), which requires, with respect to the filing of exhibits, that the

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cover sheet for each exhibit must include a descriptor of the exhibit. The Court finds that, in this

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habeas corpus action, in light of the number of exhibits petitioner has filed, there is good cause to

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waive the requirement that the cover sheet for each exhibit include a descriptor of the exhibit. The

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Court will grant this motion.

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IT IS THEREFORE ORDERED that petitioner’s Motion to Partially Waive Local Rule

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IA 10-3(e) (ECF No. 9) is GRANTED. For purposes of this habeas corpus action, with respect to

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exhibits filed by any party, the Court waives the requirement in Local Rule IA 10-3(e) that the cover

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sheet for each filed exhibit must include a descriptor of the exhibit.

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IT IS FURTHER ORDERED that petitioner’s Motion for Leave to File a Second Amended
Petition (ECF No. 10) is GRANTED.
IT IS FURTHER ORDERED that the schedule for further proceedings in this action shall
be as follows:

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Second Amended Petition

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Petitioner shall file and serve a second amended petition for writ of habeas corpus within 120

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days after entry of this order. The second amended petition shall specifically state whether each

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ground for relief has been exhausted in state court; for each claim that has been exhausted in state

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court, the amended petition shall state how, when, and where that occurred.

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Response to Second Amended Petition. Respondents shall have 90 days from filing of a

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second amended petition to file and serve an answer or other response to the second amended

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petition.

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Reply. Petitioner shall have 45 days following service of an answer to file and serve a reply.

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Respondents shall thereafter have 30 days following service of a reply to file and serve a response to

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the reply.

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Briefing of Motion to Dismiss. If respondents file a motion to dismiss, petitioner shall have

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60 days following service of the motion to file and serve a response to the motion. Respondents

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shall thereafter have 30 days following service of the response to file and serve a reply.

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Discovery. If petitioner wishes to move for leave to conduct discovery, petitioner shall file

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and serve such motion concurrently with, but separate from, the response to respondents’ motion to

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dismiss or the reply to respondents’ answer. Any motion for leave to conduct discovery filed by

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petitioner before that time may be considered premature, and may be denied, without prejudice, on

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that basis. Respondents shall file and serve a response to any such motion concurrently with, but

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separate from, their reply in support of their motion to dismiss or their response to petitioner’s reply.

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Thereafter, petitioner shall have 20 days to file and serve a reply in support of the motion for leave to

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conduct discovery.

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Evidentiary Hearing. If petitioner wishes to request an evidentiary hearing, petitioner shall

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file and serve a motion for an evidentiary hearing concurrently with, but separate from, the response

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to respondents’ motion to dismiss or the reply to respondents’ answer. Any motion for an

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evidentiary hearing filed by petitioner before that time may be considered premature, and may be

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denied, without prejudice, on that basis. The motion for an evidentiary hearing must specifically

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address why an evidentiary hearing is required, and must meet the requirements of 28 U.S.C. §

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2254(e). The motion must state whether an evidentiary hearing was held in state court, and, if so,

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state where the transcript is located in the record. If petitioner files a motion for an evidentiary

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hearing, respondents shall file and serve a response to that motion concurrently with, but separate

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from, their reply in support of their motion to dismiss or their response to petitioner’s reply.

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Thereafter, petitioner shall have 20 days to file and serve a reply in support of the motion for an

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evidentiary hearing.

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Dated this _____ day of ______________________, 2017.
July 3, 2017.

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UNITED STATES DISTRICT JUDGE

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