Holmes Jr v. Gentry et al

Filing 18

ORDER Granting 17 Unopposed Motion to Extend Time re 14 Order (First Request). Second Amended Petition due by 4/16/2019. Signed by Judge Richard F. Boulware, II on 2/5/2019. (Copies have been distributed pursuant to the NEF - MR)

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Rene L. Valladares
Federal Public Defender
Nevada State Bar No. 11479
*S. Alex Spelman
Assistant Federal Public Defender
Nevada State Bar No. 14275
411 E. Bonneville Ave., Ste. 250
Las Vegas, Nevada 89101
[phone]
[e-mail]
*Attorney for Petitioner Lafayette D. Holmes, Jr.

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U NITED S TATES D ISTRICT C OURT
D ISTRICT OF N EVADA

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Lafayette D. Holmes, Jr.,
Petitioner,

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v.
Joe Gentry, et al.,
Respondents.

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Case No. 2:17-cv-01980-RFB-GWF
Unopposed motion to extend time
to file second amended petition
(First request)

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Mr. Holmes respectfully requests an extension of 74 days, up to and including
Friday, April 16, 2019, to file his second amended petition. Respondents do not
oppose.

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In March of 2018, this court denied Mr. Holmes’s motion to appoint counsel. 1

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Days later, Mr. Holmes filed a pro se amended petition for a writ of habeas corpus, 2

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and again moved for this court to appoint counsel. 3

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After consideration of these updated pleadings, on November 2, 2018, this

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court determined that Mr. Holmes is unable to afford counsel and “the issues

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presented [in this case] warrant the appointment of counsel.” 4 This court

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provisionally appointed the Federal Public Defender, and ordered that if the

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Federal Public Defender undertakes representation here, the deadline to file a

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second amended petition will be 60 days from the date of appearance. 5

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Thereafter, the Federal Public Defender promptly began its extensive

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conflict-check process and determined that this office is able to represent Mr.

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Holmes. The office assigned undersigned counsel to represent him, and entered a

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notice of appearance on December 3, 2018. 6 This rendered a deadline of February 1,

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2019, for Mr. Holmes to file a second amended petition. 7

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Mr. Holmes’s counsel requires additional time to effectively represent Mr.

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Holmes and file an amended petition on his behalf. First, the Federal Public

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Defender is still in the process of obtaining records from prior counsel and

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examining the records the office has obtained to date. Additional time is required to

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complete this process. Second, due to the holidays and the demands of other cases,

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counsel has been unable to travel to Ely State Prison to visit with Mr. Holmes yet.

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ECF No. 11.

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ECF No. 12.

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ECF No. 13.

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ECF NO. 14.

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Id.

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ECF No. 16.

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See ECF No. 14 at 1–2.

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Additional time is required for this meeting to occur, which is essential to counsel’s

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representation of Mr. Holmes.

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Third, the demands of counsel’s schedule have prevented him from meeting

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the current deadline. Among other things since December 3, 2018, counsel has

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dedicated a substantial amount of time advising and meeting with another client, as

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well as conferring with the Nevada Attorney General’s office, for the case of Hunt v.

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Williams, No. 2:14-cv-1054-RFB-NJK (D. Nev.), for which this court has set an

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evidentiary hearing. Counsel for Mr. Holmes is also lead counsel for Mr. Hunt.

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Further, counsel has been working diligently to meet the following deadlines

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and filing dates, among others: December 4, 2018 reply brief, Vincent v. Williams,

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No. 17-16992 (9th Cir.); December 12, 2018 amended petition, Ojeda-Enriquez v.

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Warden, LCC, No. 2:18-cv-01207-RFB-VCF (D. Nev.); December 21, 2018 reply to

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answer, White v. Wickham, No. 3:04-cv-00412-GMN-CBC (D. Nev.); January 2, 2019

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second amended petition, Ross v. Baker, No. 2:13-cv-01562-JCM-CWH (D. Nev.);

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January 16, 2019 genetic marker petition, Zakouto v. State, No. 01C173183 (8th J.

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Dist. Ct. Nev.); January 18, 2019 amended petition, McNair v. Baca, No. 3:18-cv-

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00308-HDM-CBC (D. Nev.); January 28, 2019 response to motion to dismiss,

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Hernandez v. LeGrand, No. 3:17-cv-00697-MMD-WGC (D. Nev.); February 4, 2019

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amended petition, Morales v. Williams, No. 2:18-cv-00583-GMN-CWH (D. Nev.);

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February 7, 2019 amended petition, Garcia v. NDOC, No. 2:17-cv-03095-JCM-CWH

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(D. Nev.); February 29, 2019 amended petition, Cardenas v. Neven, No. 3:15-cv-

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00476-MMD-CBC (D. Nev.).

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Furthermore, counsel has been engaged in negotiations with the State after

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uncovering new evidence in Love v. State, No. 2:17-cv-2419-JAD-PAL, ECF Nos. 16,

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20 (D. Nev. 2018). And counsel was required for a hearing on January 29, 2019 in

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the Eighth Judicial District Court for the State of Nevada, for the case of Zakouto v.

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State, No. 01C173183 (8th J. Dist. Ct. Nev.). Finally, counsel will be out of the office
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to travel for necessary client visitation on or about February 15, 2019, and March

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14–15, 2019. Undersigned counsel and co-counsel plan to drive to Ely, Nevada, to

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visit Mr. Holmes on March 30, 2019, their earliest opportunity due to conflicting

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schedule demands.

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These scheduling demands have prevented counsel from meeting Mr.

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Holmes’s February 1, 2019 deadline and will necessitate the requested additional 74

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days for counsel to adequately represent Mr. Holmes and prepare and file an

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effective second amended petition on his behalf.

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On January 31, 2019, Deputy Attorney General Erin L. Bittick, on behalf of

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respondents, indicated that respondents have no opposition to the instant request

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for a 74-day extension. The parties agree that respondents’ non-opposition is a

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professional courtesy and should not be construed as agreeing with any of the

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representations in this motion or as waiving any procedural defenses to the petition.

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This motion is not filed for the purposes of undo delay but instead, is filed in

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the interests of justice. Accordingly, Mr. Holmes respectfully requests this court

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extend the deadline to file a second amended petition by 74 days, up to and

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including April 16, 2019.

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Dated February 1, 2019.
Respectfully submitted,

IT IS SO ORDERED:

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Rene L. Valladares
Federal Public Defender

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________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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DATED this 5th day of February, 2019.

/s/S. Alex Spelman
S. Alex Spelman
Assistant Federal Public Defender

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CERTIFICATE

OF

S E R V I CE

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I hereby certify that on February 1, 2019, I electronically filed the foregoing

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with the Clerk of the Court for the United States District Court, District of Nevada

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by using the CM/ECF system.

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Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system and include: Erin L. Bittick.

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I further certify that some of the participants in the case are not registered

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CM/ECF users. I have mailed the foregoing by First-Class Mail, postage pre-paid, or

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have dispatched it to a third party commercial carrier for delivery within three

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calendar days, to the following non-CM/ECF participants:
Lafayette D. Holmes
#1035895
Ely State Prison
PO Box 1989
Ely, NV 89301
/s/ Arielle Blanck
An Employee of the
Federal Public Defender

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