Altheide v. State of Nevada

Filing 41

ORDER Setting Briefing Deadlines and Denying 39 Motion. See Order for details/deadlines. Signed by Judge Jennifer A. Dorsey on 10/12/2020. (Copies have been distributed pursuant to the NEF - MR)

Case 2:19-cv-02245-JAD-BNW Document 41 Filed 10/12/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 JASON ARTHUR ALTHEIDE,
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Case No.: 2:19-cv-02245-JAD-BNW

Petitioner
Order Setting Briefing Deadlines and
Denying Motion

5 v.
6 STATE OF NEVADA, et al.,

[ECF No. 39]
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Respondents

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On August 31, 2020, I granted Jason Arthur Altheide’s request to appoint counsel and

10 appointed the Federal Public Defender to represent petitioner. 1 On September 28, 2020, Alicia R.
11 Intriago and Amelia Bizarro of the Federal Public Defender’s Office entered notices of
12 appearance on behalf of petitioner. 2
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IT IS THEREFORE ORDERED that counsel for petitioner must meet with petitioner

14 as soon as reasonably possible to: (a) review the procedures applicable in cases under 28 U.S.C.
15 § 2254; (b) discuss and explore with petitioner, as fully as possible, the potential grounds for
16 habeas corpus relief in petitioner's case; and (c) advise petitioner that all possible grounds for
17 habeas corpus relief must be raised at this time and that the failure to do so will likely result in
18 the omitted grounds being barred from future review under the rules regarding abuse of writ.
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IT IS FURTHER ORDERED that counsel for petitioner has 90 days from the date of

20 this order in which to file an amended petition for writ of habeas corpus that includes all
21 known grounds for relief (both exhausted and unexhausted).
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ECF No. 36.

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ECF Nos. 37, 38.

Case 2:19-cv-02245-JAD-BNW Document 41 Filed 10/12/20 Page 2 of 3

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IT IS FURTHER ORDERED that respondents must file a response to the petition

2 within 90 days of service of the petition, and that response must comport with Habeas Rule 5.
3 Petitioner will then have 45 days from service of the answer, motion to dismiss, or other
4 response to file a reply or opposition. Any other motions will be subject to the normal briefing
5 schedule under the local rules.
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Additionally:
1. Any procedural defenses raised by respondents in this case must be raised together in a

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single, consolidated motion to dismiss. In other words, the court does not wish to address

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any procedural defenses raised herein either in seriatum fashion in multiple successive

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motions to dismiss or embedded in the answer. Procedural defenses omitted from the

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motion to dismiss will be subject to potential waiver.

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2. Respondents must not file a response in this case that consolidates their procedural

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defenses, if any, with their response on the merits, except under 28 U.S.C.

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§ 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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

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

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to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d

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614, 623–24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion,

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should be included with the merits in an answer; they must instead be raised by motion to

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dismiss.

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3. In any answer filed on the merits, respondents must specifically cite to and address the

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applicable state-court written decision and state-court record materials, if any, regarding

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each claim within the response as to that claim; and

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Case 2:19-cv-02245-JAD-BNW Document 41 Filed 10/12/20 Page 3 of 3

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4. Respondents must file a set of state-court exhibits relevant to the response filed to the

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petition. Those exhibits must be filed chronologically and be accompanied by a separate

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index of exhibits identifying the exhibits by number. The CM/ECF attachments that are

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filed must be identified by the number or numbers of the exhibits in the attachment. The

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purpose of this provision is to allow the court and any reviewing court thereafter to

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quickly determine from the face of the electronic docket sheet which numbered exhibits

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are filed in which attachments. Respondents must send a hard copy of all pleadings and

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indices of exhibits ONLY filed for this case to the Clerk of Court, 400 S. Virginia St.,

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Reno, NV, 89501, directed to the attention of “Staff Attorney” on the outside of the

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mailing address label.

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IT IS FURTHER ORDERED that petitioner’s pro se motion for order for FPD to

12 appear [ECF No. 39] is DENIED as moot.
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Dated: October 12, 2020

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_________________________________
Jennifer A. Dorsey
United States District Judge

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