Smith v. Howell et al

Filing 11

ORDER finding as moot 7 Motion for Appointment of Counsel; ORDER granting nunc pro tunc 9 Motion to Extend Time to file a notice of representation. See Order for details. Signed by Judge Jennifer A. Dorsey on 10/16/2020. (Copies have been distributed pursuant to the NEF - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 CHRISTOPHER O. SMITH,
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Case No.: 2:20-cv-01108-JAD-DJA

Petitioner
v.

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JERRY HOWELL, et al.,

Order Setting Schedule for Further
Proceedings

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Respondents

[ECF Nos. 7, 9]

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On August 4, 2020, I entered an order directing the Clerk of Court to serve Christopher

9 O. Smith’s pro se 28 U.S.C. § 2254 petition for writ of habeas corpus on respondents. 1 I also
10 granted his motion to appoint counsel and directed the Federal Public Defender (FPD) to enter a
11 notice of appearance or indicate their inability to represent Smith. On October 6, 2020, Martin
12 Novillo of the FPD’s office filed a notice of appearance. 2 By this order, I now set a schedule for
13 further proceedings in this action.
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IT IS THEREFORE ORDERED that counsel for petitioner must meet with petitioner

15 as soon as reasonably possible to: (a) review the procedures applicable in cases under 28 U.S.C.
16 § 2254; (b) discuss and explore with petitioner, as fully as possible, the potential grounds for
17 habeas corpus relief in petitioner's case; and (c) advise petitioner that all possible grounds for
18 habeas corpus relief must be raised at this time and that the failure to do so will likely result in
19 the omitted grounds being barred from future review under the rules regarding abuse of writ.
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ECF No. 5.

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ECF No. 10.

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IT IS FURTHER ORDERED that counsel for petitioner must file an amended petition

2 for writ of habeas corpus within 90 days, which includes all known grounds for relief (both
3 exhausted and unexhausted).
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IT IS FURTHER ORDERED that respondents must file a response to the petition

5 within 90 days of service of the petition. Petitioner will then have 45 days from service of the
6 answer, motion to dismiss, or other response to file a reply or opposition. Any other motions
7 will be subject to the normal briefing schedule under the local rules.
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Any response to the petition must comport with Habeas Rule 5. 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. All procedural defenses, including

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exhaustion, must instead be raised by motion to 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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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 second motion for appointment of counsel

14 [ECF No. 7] is DENIED as moot.
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IT IS FURTHER ORDERED that petitioner’s motion for extension of time to file a

16 notice of representation [ECF No. 9] is GRANTED nunc pro tunc.
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Dated: October 16, 2020

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_________________________________
U.S. District Judge Jennifer A. Dorsey

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