Emerson v. Hutchings et al
Filing
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ORDER Granting 13 Motion for Leave to File Second Amended Petition. Amended Petition due by 2/22/2022. See Order for further details/deadlines. Signed by Judge Gloria M. Navarro on 11/19/2021. (Copies have been distributed pursuant to the NEF - MR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PRESTON EMERSON,
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Petitioner,
v.
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ORDER
WILLIAM HUTCHINGS, et al.,
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Respondents.
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This habeas matter is before the Court on Petitioner Preston Emerson’s Motion for Leave
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Case No. 2:21-cv-01215-GMN-NJK
to File Second Amended Petition (ECF No. 13).1
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On September 1, 2021, the Court provisionally appointed the Federal Public Defender and
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granted Emerson 60 days to file an amended petition. ECF No. 6. On October 25, 2021, Emerson
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filed his first amended petition for writ of habeas corpus. ECF No. 11. Emerson represented that
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upon initial review of the state court proceedings, counsel preliminarily calculated that the statute
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of limitations was likely set to expire on October 25, 2021, and filed the first amended petition as
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a protective petition. ECF No. 13 at 2. Emerson did not attach a proposed second amended petition
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and seeks permission to file a second amended petition after counsel has had a full opportunity to
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conduct additional research and investigation, review the record, and prepare an amended petition.
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Id. at 3.
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Under Federal Rule of Civil Procedure 15(a)(2), leave to amend should be freely given
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“when justice so requires.” But leave to amend “is not to be granted automatically,” and the court
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“considers the following five factors to assess whether to grant leave to amend: (1) bad faith, (2)
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undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether
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plaintiff has previously amended his complaint.” In re W. States Wholesale Natural Gas Antitrust
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Litig., 715 F.3d 716, 738 (9th Cir. 2013) (internal punctuation omitted). The Court finds that none
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Respondents filed a Non-Opposition (ECF No. 14) to Emerson’s Motion.
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of the factors above weighs against allowing the amendment sought here, especially as
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Respondents do not oppose Emerson’s motion. Accordingly, pursuant to Rule 15(a)(2) of
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the Federal Rules of Civil Procedure, the Court finds that leave to amend is appropriate. The Court
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sets forth a revised briefing schedule below.
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IT IS THEREFORE ORDERED:
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1. Petitioner Preston Emerson’s Motion for Leave to File Second Amended Petition (ECF
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No. 13) is GRANTED.
2. Respondents are not required to respond to the first amended petition for writ of habeas
corpus (ECF No. 11).
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3. Petitioner Emerson will have until February 22, 2022 to file a second amended petition
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for writ of habeas corpus. Petitioner at all times remains responsible for calculating
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the running of the federal limitation period and timely presenting claims. That is, by
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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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4. Respondents will have 60 days from the date on which the second amended petition is
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served upon them to answer or otherwise respond to the petition. If Respondents file
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an answer, Petitioner will have 30 days to file a reply to the answer. If any motion is
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filed, the parties will brief the motion in accordance with LR 7- 2 and 7-3 of the Local
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Rules of Practice.
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5. Any procedural defenses raised by Respondents in this case must be raised together in
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a single consolidated motion to dismiss. Respondents may not file a response in this
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case that consolidates their procedural defenses, if any, with their response on the
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merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly
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lacking merit. If Respondents do seek dismissal of unexhausted claims under §
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2254(b)(2): (a) they must do so within the single motion to dismiss not in the answer;
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and (b) they will specifically direct their argument to the standard for dismissal under
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§ 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). All
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procedural defenses, including exhaustion, must be raised by motion to dismiss.
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6. 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.
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7. Respondents must file a set of state court exhibits relevant to the response filed to the
petition, in chronological order.
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8. All state court records and related exhibits must be filed in accordance with LR IA 10-
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3, LR IC 2-2, and LSR 3-3, and include a separate index identifying each additional
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exhibit by number or letter. The index must be filed in CM/ECF’s document upload
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screen as the base document to receive the base docket number (e.g., ECF No. 10).
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Each exhibit will then be filed as “attachments” to the base document—the index—to
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receive a sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B
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(ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more
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than one filing, the base document in each successive filing must be either a copy of
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the index or volume cover page. See LR IC 2-2(a)(3)(A).
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9. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits—for
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this case—need not be provided to chambers or to the staff attorney, unless later
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directed by the Court.
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DATED: November 19, 2021
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________________________________
GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE
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