Harsh v. Gentry et al

Filing 15

ORDER that FPD Megan C. Hoffman, Esq be appointed as counsel for petitioner; ECF No. 10 Motion for Leave to File a First Amended Petition is granted; Clerk directed to file the first amended petition 10 -1; ECF Nos. 11 , 12 , and 13 Mo tion for Leave to File Index of Exhibits are granted; (exhibits left on docket as ECF Nos. 11 , 12 , and 13 ; ECF No. 14 Motion for a Scheduling Order is granted; petitioner will have until 2/14/2018 to file second amended p etition and/or seek other appropriate relief; Respondents are not required to respond to first amended petition (see order for specific details); any procedural defenses raised by respondents to the amended petition must be raised together in motion to dismiss; respondents' answer must specifically cite to and address the applicable state court written decision and state court record materials; the hard copy of any exhibits filed by either counsel must be delivered to the Reno Clerks Office. Signed by Judge Miranda M. Du on 11/16/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THOMAS HARSH,

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Case No. 2:17-cv-02069-MMD-NJK
Petitioner,

ORDER

v.
JO GENTRY, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court following upon

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the Federal Public Defender’s entry of a notice of appearance (ECF No. 9) together with

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petitioner’s motion for leave to file a first amended petition (ECF No. 10), motions for leave

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to file index of exhibits in support of first amended petition (ECF Nos. 11, 12 & 13), and

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motion for a scheduling order (ECF No. 14).

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The motions collectively seek to pursue a “two-step” procedure whereby petitioner:

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(a) files an initial counseled amended petition preserving all then-known claims free of

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possible relation-back issues; and (b) thereafter potentially files a second amended

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petition after petitioner’s newly-appointed federal habeas has had a full opportunity to

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independently investigate all potential claims. The Court expressly has authorized such

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a “two-step” procedure in prior cases, and it does so here. See, e.g., McMahon v. Neven,

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No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev., May 29, 2014)(approving and

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explaining the Court's rationale in allowing a bifurcated amendment procedure in habeas

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cases where the limitation period potentially may expire before federal habeas counsel

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would be able to conduct a complete investigation).

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It is therefore ordered that the Federal Public Defender, through Megan C.

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Hoffman, Esq., is appointed as counsel for petitioner pursuant to 18 U.S.C. §

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3006A(a)(2)(B). Counsel will represent petitioner in all federal proceedings related to this

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matter, including any appeals or certiorari proceedings, unless allowed to withdraw.

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It is further ordered that petitioner’s motion for leave to file a first amended petition
(ECF No. 10) is granted.

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It is further ordered that the Clerk of Court file the first amended petition.

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It is further ordered that petitioner’s motions for leave to file index of exhibits in

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support of first amended petition (ECF Nos. 11, 12 and 13) are granted. The Clerk will file

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the exhibits in a manner most convenient to the Clerk, which potentially may include

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leaving the exhibits docketed where they currently are along with the now-cleared

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motions.

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It is further ordered that petitioner’s motion for a scheduling order (ECF No. 14) is
granted consistent with the remaining provisions of this order.

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It is further ordered that petitioner will have until up to and including ninety (90)

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days from entry of this order within which to file a second amended petition and/or seek

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other appropriate relief. Neither the foregoing deadline nor any extension thereof signifies

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or will signify any implied finding as to the expiration of the federal limitation period and/or

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of a basis for tolling during the time period established. Petitioner at all times remains

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responsible for calculating the running of the federal limitation period and timely asserting

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claims, without regard to any deadlines established or extensions granted herein. That is,

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by setting a deadline to amend the petition and/or by granting any extension thereof, the

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Court makes no finding or representation that the petition, any amendments thereto,

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and/or any claims contained therein are not subject to dismissal as untimely. See Sossa

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v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

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It is further ordered that: (a) respondents will not be required to respond to the first

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amended petition at this time, but that (b) respondents must file a response to the petition,

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as then amended, either within sixty (60) days of service of a second amended petition if

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filed or instead within sixty (60) days of the final expiration of the time to do so if petitioner

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does not file a second amended petition; and (c) petitioner may file a reply within thirty

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(30) days of service. The response and reply time to any motion filed by either party,

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including a motion filed in lieu of a pleading, will be governed instead by the local rules.

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It is further ordered that any procedural defenses raised by respondents to the

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counseled amended petition must be raised together in a single consolidated motion to

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

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

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

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be subject to potential waiver. Respondents must 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. If

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respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall

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do so within the single motion to dismiss not in the answer; and (b) they shall specifically

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direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett

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v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses,

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including exhaustion, shall be included with the merits in an answer. All procedural

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defenses, including exhaustion, instead must be raised by motion to dismiss.

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It is further ordered that, in any answer filed on the merits, respondents must

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

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

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It is further ordered that the hard copy of any exhibits filed by either counsel must
be delivered — for this case — to the Reno Clerk's Office.
DATED THIS 16th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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