Ayala v. Gentry et al

Filing 64

ORDER granting 63 Motion to Extend Time Re: 46 Amended Petition for Writ of Habeas Corpus. Response due due 12/27/2022. Signed by Judge Richard F. Boulware, II on 10/26/2022. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:17-cv-02093-RFB-VCF Document 64 Filed 10/26/22 Page 1 of 5

6

AARON D. FORD
Attorney General
Michael J. Bongard (Bar. No. 7997)
Senior Deputy Attorney General
State of Nevada
Office of the Attorney General
1539 Avenue F, Suite 2
Ely, NV 89301
[phone] (phone)
[phone] (fax)
[e-mail]

7

Attorneys for Respondents

1
2
3
4
5

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

OMAR AYALA,

11

Petitioner,

12

vs.

13

BRIAN E. WILLIAMS, SR., et al.,

14

Case No. 2:17-cv-02093-RFB-VCF
UNOPPOSED MOTION FOR AN
EXTENSION OF TIME TO FILE THE
ANSWER TO THE FOURTH AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS
(ECF NO. 46)

Respondents.

(First Request)

15
16

Respondents, through legal counsel, Aaron D. Ford, Attorney General of The State of Nevada,

17

and Michael J. Bongard, Senior Deputy Attorney General, hereby move this court for a sixty (60) day

18

enlargement of time, up to and including January 6, 2023, in which to submit the answer to the fourth

19

amended petition for writ of habeas corpus (ECF No. 46). The response is currently due November 7,

20

2022. Respondents base this motion on the declaration of Counsel.

21
22
23
24
25
26
27

This is Respondents’ first request for an extension of time in which to file the answer and made
in good faith and not for purposes of delay.
DATED this 26th day of October, 2022.
AARON D. FORD
Attorney General
By: /s/ Michael J. Bongard________________
Michael J. Bongard (Bar No. 007997)
Senior Deputy Attorney General

28

Page 1 of 5

Case 2:17-cv-02093-RFB-VCF Document 64 Filed 10/26/22 Page 2 of 5
1

DECLARATION OF MICHAEL J. BONGARD

2

1.

I am a Deputy Attorney General employed by the Attorney General’s Office of the State

3

of Nevada in the Post-Conviction Division, and I make this declaration on behalf of Respondents’

4

Unopposed Motion for Enlargement of Time to file the answer to the petition (First Request) in the above-

5

captioned case. By this motion, I am requesting a sixty (60) day enlargement of time, up to and including,

6

January 6, 2022, to file and serve the answer to the petition. The answer is currently due November 7,

7

2022.

8

2.

Since the Court’s August 9, 2022, order on the motion to dismiss in this matter, Counsel

9

has filed the following pleadings in federal habeas matters: 1.) On September 1, 2022, an opposition to

10

the motion to file a replacement opening brief in Bejarano v. Reubart, et al., Ninth Circuit case number

11

11-99000 (death penalty case); 2.) On September 6, 2022, the answer to the remaining claims in Leal v.

12

State, USDC case number 2:21-cv-00595-JAD-VCF; 3.) On September 8, 2022, the answer to the

13

remaining claims in Moore v. Reubart, et al., USDC case number 2:13-cv-00655-JCM-DJA (death

14

penalty case); 4.) Also on September 8, 2022, pleadings addressing a pro se petitioner’s filings in the

15

closed case of O’Keefe v. LeGrand, et al., USDC case number 2:11-cv-02109-JCM-VCF; and 5.) On

16

October 25, 2022, counsel filed the supplemental response to procedurally defaulted claims in McNelton

17

v. Reubart, et al., USDC case number 2:00-cv-00284-RJC-DJA (death penalty case).

18

3.

In addition to the answer in this case, Counsel is currently working on the following

19

pleadings: 1.) the answer to the remaining claims in Greene v. Reubart, et al., USDC case number 2:07-

20

cv-00304-CSD-DJA (death penalty case), currently due on November 21, 2022; and 2.) supplemental

21

blind briefing in Bejarano v. Reubart, et al., Ninth Circuit case number 11-99000 (death penalty case),

22

due on November 14, 2022. It is likely that Counsel may need a further enlargement of time in the Greene

23

case.

24

4.

Counsel has also filed the following pleadings in state courts: 1.) On August 22, 2022,

25

Counsel filed the answering brief in Ferm v. State of Nevada, Nevada Supreme Court case number 84002;

26

2.) On September 19, 2022, motions to dismiss state habeas petitions in Seventh Judicial District Court

27

(White Pine County) cases Lora v. State, case number HC-2208007, and Lopez v. Reubart, case number

28

HC-2208008; and 3.) On October 19, 2022, a motion to dismiss the state habeas petition in Proctor v.

Page 2 of 5

Case 2:17-cv-02093-RFB-VCF Document 64 Filed 10/26/22 Page 3 of 5
1

Reubart, Seventh Judicial District Court (White Pine County) case number HC-2209012. Counsel also

2

filed pretrial motions, oppositions, and replies in the two cases in paragraph 5, below.

3

5.

Counsel has also appeared for state court hearings in the following matter: 1.) Status

4

hearings in State v. Georgantas, Eighth Judicial District Court case number C-16-311820-1 on August

5

17, 2022, and September 12, 2022; 2.) On August 22, 2022, the arraignment in State v. Banasiak, Seventh

6

Judicial District Court case number CR-2205056 (White Pine County); 3.) On August 24, 2022, a

7

preliminary hearing in State v. Brown, Ely Justice Court case number 22-CR-00026-7k; 4.) On August

8

29, 2022, a change of plea hearing in State v. Rojas-Rubio, Seventh Judicial District Court case number

9

CR-2206062 (White Pine County); 5.) On August 31, 2022, argument on the Mandamus petition in Leal

10

v. Nevada Department of Public Safety, et al., Eighth Judicial District Court case number A-21-840493-

11

W; 6.) On September 8, 2022, two preliminary hearing in the Ely Justice Court in State v. Ogunbanwo,

12

case number 22-CR-00069-7k, and State v. Robins, case number 21-CR-00158-7k; 7.) On September 26,

13

2022, the sentencing hearing in State v. Emanuel, Seventh Judicial District Court (White Pine County)

14

case number CR-2003028; 8.) On September 30, 2022, a hearing on pretrial motions in State v.

15

Himmelman, Fourth Judicial District Court case number CR-22-29; 9.) On October 3, 2022, a sentencing

16

hearing in State v. Morgan, Seventh Judicial District Court (White Pine County) case number CR-

17

2202012, a change of plea and sentencing also in White Pine County in State v. Hagerman, case number

18

2202013, and a telephonic case management hearing in Savage v. State, Eleventh Judicial District Court

19

(Pershing County) case number 27CV-WR1-2020-0219; 10.) On October 7, 2022, Counsel traveled to

20

Elko for a settlement mediation in State v. Himmelman, Fourth Judicial District Court case number CR-

21

22-29; and 11.) On October 20, 2022, a case management hearing in Wilson v. Russell, Eleventh Judicial

22

District Court (Mineral County) case number 21CV-WR1-2021-0052.

23

6.

Counsel has also been preparing for two multiple week trials in state court: The first trial,

24

State v. Range, and State v. Escalante, Seventh Judicial District Court case numbers CR-1910104 and

25

CR-1910105 (White Pine County), a murder trial originally set for November 1 through November 18,

26

2022, has been continued to July of 2023. The second trial, State v. Himmelman, Fourth Judicial District

27

Court case number CR-22-29, also a murder trial, is set for a change of plea on October 31, 2022. If the

28

case does not plea, trial is set for November 29, 2022, through December 9, 2022.

Page 3 of 5

Case 2:17-cv-02093-RFB-VCF Document 64 Filed 10/26/22 Page 4 of 5
1

7.

Counsel took leave from August 5, 2022, through August 16, 2022, and on September 16,

2

2022. Counsel will also be taking annual leave from December 16, 2022, through January 3, 2023.

3

Counsel also needs to take approximately four additional days of leave or face losing the leave time.

4

Counsel also had medical appointments that took him out of the office for part of August 17, 2022,

5

8.

On October 25, 2022, Counsel e-mailed opposing counsel, Shelly Richter from the Federal

6

Public Defender Office, to determine whether she would oppose this request for enlargement of time.

7

Ms. Richter replied via e-mail stating that she does not oppose this motion. Based upon the progress

8

made on the answer in this case, Counsel does not anticipate additional time will be needed absent

9

unforeseen circumstances.

10
11
12

For these reasons, Counsel respectfully asks this Court to grant the request for an extension of
time of sixty (60) days to file the response to the petition.
DATED this 26th day of October, 2022.

13

By: /s/ Michael J. Bongard________________
Michael J. Bongard (Bar No. 007997)
Senior Deputy Attorney General

14
15
16
17
18
19

ORDER

20

IT IS SO ORDERED.

21

Dated this 26th
____ day of ___________________________,
2022.
October

22
23

DISTRICT COURT JUDGE

24
25
26
27
28

Page 4 of 5

Case 2:17-cv-02093-RFB-VCF Document 64 Filed 10/26/22 Page 5 of 5
1
2
3
4
5
6
7
8
9

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing document with the Clerk of the Court by
using the CM/ECF system on the 26th day of October, 2022.
The following participants in the case who are registered CM/ECF users will be served by the
CM/ECF system.
Shelly Richter
Assistant Federal Public Defender
411 E. Bonneville, Suite 250
Las Vegas, NV 89101
/s/ Amanda White

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Page 5 of 5