Tracy Petrocelli v. Timothy Filson, et al.

Filing 269

ORDER directing Clerk to administratively reopen this case; directing Clerk to substitute Timothy Filson for Renee Baker and Adam Paul Laxalt for Catherine Cortez Masto; giving Petitioner 14 days to file a proposed order granting habeas relief as mandated by the Court of Appeals, giving Respondents 14 days to respond and Petitioner 7 days to reply. Signed by Judge Robert C. Jones on 9/28/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRACY PETROCELLI,

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Petitioner,

3:94-cv-00459-RCJ-VPC
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vs.

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TIMOTHY FILSON, et al.,

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Respondents.

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ORDER

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In this capital habeas corpus action, in an order entered on October 9, 2013, the Court denied

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the petitioner, Tracy Petrocelli, habeas corpus relief (ECF No. 246). Judgment was entered on the

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same date (ECF No. 247). Petrocelli filed a “Motion to Alter or Amend Judgment Pursuant to Fed.

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R. Civ. Proc. 59(e)” (ECF No. 248), and the Court denied that motion on April 9, 2014 (ECF No.

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255). Petrocelli appealed, and the Ninth Circuit Court of Appeals ruled on July 5, 2017 (ECF No.

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264), and then filed an amended opinion on August 23, 2017 (ECF No. 265). The Court of Appeals

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filed its mandate on September 1, 2017 (ECF No. 266). On September 21, 2017, this Court ordered

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the mandate spread upon the record (ECF No. 268).

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The Court of Appeals affirmed this Court’s denial of relief with respect to Petrocelli’s

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conviction, but reversed this Court’s denial of relief with respect to his death sentence; the Court of

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Appeals remanded the case to this Court with the instruction that Petrocelli be granted relief with

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regard to his sentence. See Order and Amended Opinion (ECF No. 265). The instruction of the

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Court of Appeals is as follows:

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We affirm the district court’s denial of Petrocelli’s petition for a writ of
habeas corpus with respect to the conviction, but reverse with respect to the death
sentence. We remand with instructions to grant the writ as to the penalty unless,
within a reasonable time, the State grants a new penalty phase trial or imposes a lesser
sentence consistent with the law.
Id. at 40.
The Court will entertain briefing from the parties with respect to the form of the order to be
issued in compliance with the mandate of the Court of Appeals.
IT IS THEREFORE ORDERED that the Clerk of the Court shall administratively reopen
this case.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the

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Clerk of the Court shall substitute Timothy Filson for Renee Baker, on the docket for this case, as the

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respondent warden, and shall substitute Adam Paul Laxalt for Catherine Cortez Masto as the

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respondent Attorney General of the State of Nevada, and shall update the docket to reflect these

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changes.

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IT IS FURTHER ORDERED that, within 14 days from the date of this order, the petitioner

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shall file a proposed order granting habeas corpus relief as mandated by the Court of Appeals, along

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with any necessary briefing in support of the proposed order. The respondents shall then have

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14 days to file a response if they deem it necessary. Petitioner will then have 7 days to file a reply if

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he deems it necessary. The Court will not look favorably upon any motion, by any party, to extend

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this briefing schedule.

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DATED: This 28th day_________________________, 2017.
Dated this _____ day of of September, 2017.

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UNITED STATES DISTRICT JUDGE
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