Holmes Jr v. Gentry et al

Filing 33

ORDER. IT IS ORDERED that respondents shall file a response to the second amended petition, including potentially by motion to dismiss, within sixty (60) days of service of an amended petition and that petitioner may file a reply within thirty (30) days of service of an answer. See Order for details. Signed by Judge Richard F. Boulware, II on 8/13/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAFAYETTE D. HOLMES, JR.,

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Petitioner,

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Case No. 2:17-cv-01980-RFB-GWF
ORDER

v.

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JO GENTRY, et al.,

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Respondents.

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Following upon petitioner's filing of the second amended petition (ECF No. 30);1

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IT THEREFORE IS ORDERED that respondents shall file a response to the second

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amended petition, including potentially by motion to dismiss, within sixty (60) days of service of

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an amended petition and that petitioner may file a reply within thirty (30) days of service of an

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answer. The response and reply time to any motion filed by either party, including a motion filed

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in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b).
IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the

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counseled amended petition shall be raised together in a single consolidated motion to dismiss. In

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other words, the Court will not address procedural defenses raised either in serial fashion by way

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of multiple motions to dismiss or in the answer. Procedural defenses omitted from such motion to

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The court is using the corrected image of the second amended petition, not the original filing of the second
amended petition (ECF No. 28).

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dismiss will be subject to potential waiver. Respondents shall 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 pursuant

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

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seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single

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motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24

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(9th Cir. 2005). No procedural defenses, including exhaustion, shall be included with the merits

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in an answer. All procedural defenses, including exhaustion, instead must be raised by a single

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motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies

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of any electronically filed exhibits need not be provided to chambers or to the staff attorney,

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unless later directed by the court.

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DATED: August 13, 2019.

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______________________________
RICHARD F. BOULWARE, II
United States District Judge

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