Seka v. Johnson

Filing 4

ORDER. IT IS THEREFORE ORDERED that the Clerk of Court electronically SERVE the petition (ECF No. 2 ) on respondents. IT IS FURTHER ORDERED that the Clerk of Court add Aaron D. Ford, Nevada Attorney General, as counsel for respondents and provide respondents an electronic copy of all items previously filed in this case by regenerating the Notice of Electronic Filing to the office of the Attorney General only. IT IS FURTHER ORDERED that respondents file a response to the petition, includin g potentially by motion to dismiss, within 90 days of service of the petition, with any requests for relief by petitioner by motion otherwise being subject to the normal briefing schedule under the local rules. Any response filed is to comply with th e remaining provisions below, which are entered pursuant to Habeas Rule 5. IT IS FURTHER ORDERED that petitioner has 45 days from service of the answer, motion to dismiss, or other response to file a reply or opposition, with any other requests fo r relief by respondents by motion otherwise being subject to the normal briefing schedule under the local rules. IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of any responsive pleading or motion and all INDICES OF EXH IBITS ONLY to the Reno Division of this court. Courtesy copies are to be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the attention of "Staff Attorney" on the outside of the mailing address label. No f urther courtesy copies are required unless and until requested by the court. See Order for additional information. Calvin Johnson answer due 7/25/2024. Signed by Judge Richard F. Boulware, II on 4/26/2024. (Copies have been distributed pursuant to the NEF - RJDG)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8 JOHN JOSEPH SEKA,
9
10

Petitioner
v.

Case No.: 2:22-cv-02184-RFB-BNW
Order Directing Service of Petition and
Setting Briefing Schedule

11 CALVIN JOHNSON, WARDEN, et al.,
12
13
14
15
16
17
18
19
20
21
22
23

Respondents.
John Joseph Seka challenges his conviction in Eighth Judicial District Court (Clark
County), Nevada by a jury of first-degree murder, second-degree murder, and two counts of
robbery. The Ninth Circuit Court of Appeals granted his application for authorization to file a
second or successive 28 U.S.C. § 2254 habeas corpus petition and transferred the proposed petition
to this Court. The Court has conducted a preliminary review of the petition under Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts and directs that it be
served on respondents.
A petition for federal habeas corpus should include all claims for relief of which petitioner
is aware. If petitioner fails to include such a claim in his petition, he may be forever barred from
seeking federal habeas relief upon that claim. See 28 U.S.C. §2244(b) (successive petitions). If

1 petitioner is aware of any claim not included in his petition, he should notify the court of that as
2 soon as possible, perhaps by means of a motion to amend his petition to add the claim.
3

IT IS THEREFORE ORDERED that the Clerk of Court electronically SERVE the

4 petition (ECF No. 2) 1 on respondents.
5

IT IS FURTHER ORDERED that the Clerk of Court add Aaron D. Ford, Nevada

6 Attorney General, as counsel for respondents and provide respondents an electronic copy of all
7 items previously filed in this case by regenerating the Notice of Electronic Filing to the office of
8 the Attorney General only.
9

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

10 potentially by motion to dismiss, within 90 days of service of the petition, with any requests for
11 relief by petitioner by motion otherwise being subject to the normal briefing schedule under the
12 local rules. Any response filed is to comply with the remaining provisions below, which are entered
13 pursuant to Habeas Rule 5.
14

IT IS FURTHER ORDERED that any procedural defenses raised by respondents in this

15 case be raised together in a single consolidated motion to dismiss. In other words, the court does
16 not wish to address any procedural defenses raised herein either in seriatum fashion in multiple
17 successive motions to dismiss or embedded in the answer. Procedural defenses omitted from such
18 motion to dismiss will be subject to potential waiver. Respondents should not file a response in
19 this case that consolidates their procedural defenses, if any, with their response on the merits,
20 except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If
21 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will do so within
22 the single motion to dismiss not in the answer; and (b) they will specifically direct their argument
23
1

The petition itself is actually found at ECF No. 2 at 78-120.
2

1 to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 6232 24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, should be included with
3 the merits in an answer. All procedural defenses, including exhaustion, instead must be raised by
4 motion to dismiss.
5

IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents

6 specifically cite to and address the applicable state court written decision and state court record
7 materials, if any, regarding each claim within the response as to that claim.
8

IT IS FURTHER ORDERED that petitioner has 45 days from service of the answer,

9 motion to dismiss, or other response to file a reply or opposition, with any other requests for relief
10 by respondents by motion otherwise being subject to the normal briefing schedule under the local
11 rules.
12

IT IS FURTHER ORDERED that any additional state court record exhibits filed herein

13 by either petitioner or respondents be filed with a separate index of exhibits identifying the exhibits
14 by number. The parties will identify filed CM/ECF attachments by the number of the exhibit in
15 the attachment. Each exhibit will be filed as a separate attachment.
16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

3

1

IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of any

2 responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the Reno Division
3 of this court. Courtesy copies are to be mailed to the Clerk of Court, 400 S. Virginia St., Reno,
4 NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing address
5 label. No further courtesy copies are required unless and until requested by the court.
6
7

DATED: 26 April 2024.

8
9

RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23

4