Herrada-Gonzalez v. Howell et al

Filing 12

ORDER granting 9 Motion for Leave to File Document; ORDER granting 10 Motion for Scheduling Order; Petitioner must file first amended protective petition within 7 days of entry of this order. Petitioner will have until up to and including 120 days from entry of this order to file a Second Amended Petition (see order for deadlines). Signed by Judge Gloria M. Navarro on 7/8/2020. (Copies have been distributed pursuant to the NEF - JM)

Case 2:20-cv-01013-GMN-DJA Document 12 Filed 07/08/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARIO HERRADA-GONZALEZ,

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Petitioner,

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Case No. 2:20-cv-01013-GMN-DJA
ORDER

v.
JERRY HOWELL, et al.,

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Respondents.

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The Federal Public Defender has filed a notice of appearance on petitioner's behalf (ECF

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No. 8). The court will formally appoint the Federal Public Defender.
Petitioner also has filed a motion for leave to file first amended protective petition (ECF

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No. 9) and a motion for scheduling order (ECF No. 10). The court grants these motions.
IT THEREFORE IS ORDERED that the Federal Public Defender is appointed as counsel

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for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent petitioner in all

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federal proceedings related to this matter, including any appeals or certiorari proceedings, unless

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allowed to withdraw.
IT FURTHER IS ORDERED that petitioner's motion for leave to file first amended

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protective petition (ECF No. 9) is GRANTED. Petitioner must file the counseled first amended

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protective petition and supporting exhibits within seven (7) days from the date of entry of this

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order.
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Case 2:20-cv-01013-GMN-DJA Document 12 Filed 07/08/20 Page 2 of 3

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IT FURTHER IS ORDERED that petitioner's motion for scheduling order (ECF No. 10)
is GRANTED.
IT FURTHER IS ORDERED that petitioner will have until up to and including one

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hundred twenty (120) days from entry of this order within which to file a second amended

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petition and/or seek other appropriate relief. Neither the foregoing deadline nor any extension

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thereof signifies or will signify any implied finding as to the expiration of the federal limitation

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period and/or of a basis for tolling during the time period established. Petitioner always 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, by

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

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no finding or representation that the petition, any amendments thereto, and/or any claims

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contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225,

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1235 (9th Cir. 2013).

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

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

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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, will be governed instead by Local Rule LR 7-2(b).

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the

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counseled second 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 raised herein

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either in serial fashion in multiple successive motions to dismiss or embedded in the answer.

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Procedural defenses omitted from such motion to dismiss will be subject to potential waiver.

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Respondents must not file a response in this case that consolidates their procedural defenses, if

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any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any

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unexhausted claims clearly lacking merit. If respondents do seek dismissal of unexhausted claims

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under § 2254(b)(2): (a) they must do so within the single motion to dismiss not in the answer; and

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(b) they must specifically direct their argument to the standard for dismissal under § 2254(b)(2)
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Case 2:20-cv-01013-GMN-DJA Document 12 Filed 07/08/20 Page 3 of 3

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

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defenses, including exhaustion, must 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 FURTHER IS 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 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: July 8, 2020

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______________________________
GLORIA M. NAVARRO
United States District Judge

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