Fabian Fuentez Rosas VS E.K. McDaniel, et al.,

Filing 67

ORDERED that # 63 Motion to reopen this action and motion for leave to file a second amended petition is GRANTED. FURTHER ORD that, as the stay is lifted by this order, the Clerk shall REOPEN THE FILE in this action. FURTHER ORD that the supple mental exhibits, 2013, at ECF Nos. 64 & 65 , are ACCEPTED as supplemental exhibits to the # 32 First amended petition. The Clerk of Court SHALL ATTACH AND/OR LINK the exhibits at ECF No. 64 & 65 to the # 32 First amended petition on the CM /ECF docket in this action. ( Clerk has added/clarified links to docket entries ## 64 , 65 Exhibits, referring back to #32 First amended petition; and, modified docket entry # 32 to establish link to the supplemental Exhibits. ) FURTHER O RD that petitioner shall have until 8/5/2013 to FILE AND SERVE a second amended petition and any further exhibits. FURTHER ORD that respondents shall have 30 days following service of the second amended petition to FILE AND SERVE an answer or oth er response to the same. FURTHER ORD that petitioner shall have 30 days following service. of the answer to FILE AND SERVE a reply brief. If a dispositive motion is filed in response to the second amended petition, the parties shall brief the moti on in accordance with Local Rule 7-2. FURTHER ORD that the parties SHALL SEND courtesy paper copies of any further exhibits filed in this action to the Reno staff attorney. Signed by Judge Roger L. Hunt on 5/7/2013. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
11
FABIAN FUENTES ROSAS,
12
Petitioner,
13
vs.
14
E.K. McDANIEL, et al.,
15
Respondents.
16

|
|
|
|
|
|
|
|
|
|

3:05-cv-00490-RLH-VPC
ORDER

17
This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by Fabian
18
Fuentes Rosas, a prisoner represented by counsel. This matter comes before the Court on
19
petitioner’s motion to reopen the case and motion to file a second amended petition. (ECF No. 63).
20
On September 13, 2007, this Court ruled that the first amended petition was a mixed petition,
21
as Grounds One, Four, Five, Six, Seven, and Nine were unexhausted, but Grounds Two, Three,
22
Eight, and Ten were exhausted. (ECF No. 46). The Court gave petitioner the option of abandoning
23
his unexhausted claims and proceeding on his exhausted claims, or in the alternative, to seek a stay
24
under Rhines v. Weber, 544 U.S. 269 (2005). Petitioner moved for the issuance of stay and abeyance
25
order under Rhines v. Weber. (ECF No. 56). By order filed September 16, 2008, this Court granted
26
petitioner’s motion for a stay and the case was administratively closed. (ECF No. 61).
27
Petitioner’s further state-court proceedings having concluded, petitioner has now returned to
28

1
2
3
4
5
6
7
8
9
10
11

this Court seeking to reopen this case. On April 17, 2013, petitioner filed a combined motion to
reopen the case and motion for leave to file a second amended petition. (ECF No. 63). Petitioner
also filed exhibits in support of the motion to reopen the case and in support of the first amended
petition. (ECF Nos. 64 & 65). Respondents filed a response to the motion on May 6, 2013,
indicating that they have no objection to Rosas’ motion to reopen. (ECF No. 66, at p. 1).
Respondents indicate that they do not consent to the filing of a second amended petition. (ECF No.
66, at p. 2). In the interests of justice and pursuant to Rule 15(a)(2) of the Federal Rules of Civil
Procedure, petitioner’s motion to file a second amended petition is granted. The motion to reopen
this action is granted.
IT IS THEREFORE ORDERED that petitioner’s motion to reopen this action and motion

12
13

for leave to file a second amended petition (ECF No. 63) is GRANTED.
IT IS FURTHER ORDERED that, as the stay is lifted by this order, the Clerk shall

14
15

REOPEN THE FILE in this action.
IT IS FURTHER ORDERED that the supplemental exhibits, filed April 17, 2013, at ECF

16
17
18
19

Nos. 64 & 65, are ACCEPTED as supplemental exhibits to the first amended petition (ECF No. 32).
The Clerk of Court SHALL ATTACH AND/OR LINK the exhibits at ECF No. 64 & 65 to the first
amended petition (ECF No. 32) on the CM/ECF docket in this action.
IT IS FURTHER ORDERED that petitioner shall have ninety (90) days from the date of

20
21
22
23
24

entry of this order to FILE AND SERVE a second amended petition and any further exhibits. In
granting petitioner 90 days, as was specifically requested, the Court is disinclined to grant further
extensions of time beyond the 90 days; however, the Court will consider such a motion if
extraordinary circumstances are present.
IT IS FURTHER ORDERED that respondents shall have thirty (30) days following

25
26
27
28

service of the second amended petition to FILE AND SERVE an answer or other response to the
same.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following service

1
2
3
4
5
6
7
8
9

of the answer to FILE AND SERVE a reply brief. If a dispositive motion is filed in response to the
second amended petition, the parties shall brief the motion in accordance with Local Rule 7-2.
IT IS FURTHER ORDERED that the parties SHALL SEND courtesy (paper) copies of
any further exhibits filed in this action to the Reno Division of this Court. Courtesy copies shall 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.
Dated this

7th

day of May, 2013.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

UNITED STATES DISTRICT JUDGE