Friedman v. State Of Nevada et al

Filing 132

ORDER that counsel for petitioner SHALL contact petitioner as soon as reasonably possible to: (a) review the procedures applicable under 28 U.S.C. §2254; (b) discuss and explore with petitioner, as fully as possible, the potential grounds for h abeas corpus relief in petitioners case; and (c) advise petitioner that all possible grounds for habeas corpus relief must be raised at this time in this case, and that the failure to do so will likely result in the omitted grounds being barred from future review under the rules regarding abuse of the writ. IT IS FURTHER ORDERED that counsel for respondents SHALL make available to counsel for petitioner (photocopying costs at the latters expense), as soon as reasonably possible, a copy of whate ver portions of the state court record they possess regarding the judgment petitioner is challenging herein. IT IS FURTHER ORDERED that counsel for petitioner SHALL FILE AND SERVE a Third Amended Petition for Writ of Habeas Corpus within ninety (90) days of the entry of this Order. The Third Amended Petition shall include all known grounds for relief (both exhausted and unexhausted). Respondents shall have forty-five (45) days after service of the Third Amended Petition within which to answer , or otherwise respond to the same. If an answer is filed, petitioner shall have forty-five (45) days from the date of service of the answer to file a reply. ( Amended Petition due by 6/3/2010.) Signed by Judge Larry R. Hicks on 3/4/2010. (Copies have been distributed pursuant to the NEF - SL)

1 2 3 4 5 6 7 8 9 10 11 12 STATE OF NEVADA, et al., 13 Respondents. 14 15 16 17 18 19 vs. KENNETH FRIEDMAN, Petitioner, ) ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

3:07-cv-00338-LRH-VPC ORDER

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 11, 2010, this court entered an order appointing the Federal Defender to represent petitioner in this case. (Docket #130.) The Federal Defender filed a notice of appearance on February 10, 2010. (Docket #131.) Counsel will represent petitioner in all future federal proceedings relating to this matter

20 (including subsequent actions) and appeals therefrom, unless allowed to withdraw. Petitioner and his 21 counsel should pay very close attention to the effect of the one-year statute of limitations applicable to 22 federal habeas corpus petitions pursuant to 28 U.S.C. §2244(d)(1) (part of the Antiterrorism and 23 Effective Death Penalty Act (AEDPA)). In addition, petitioner and his counsel should be aware of the 24 holdings in Duncan v. Walker, 533 U.S. 167 (2001), and Fail v. Hubbard, 315 F.3d 1059 (9th Cir. 25 2002). The practical effect of Duncan and Fail is that the one-year limitations period applicable to all 26 federal habeas corpus petitions will generally not be tolled during the pendency of a federal habeas 27 corpus petition. This means that any subsequent habeas corpus petition filed in this Court -- for 28 example, a petition filed after returning to state court to exhaust any unexhausted claims -- may be

1 untimely under the applicable statute of limitations, and the time during which this habeas corpus case 2 is pending will not toll or otherwise excuse compliance with that statute. 3 IT IS THEREFORE ORDERED that counsel for petitioner SHALL contact petitioner as

4 soon as reasonably possible to: (a) review the procedures applicable in cases under 28 U.S.C. §2254; 5 (b) discuss and explore with petitioner, as fully as possible, the potential grounds for habeas corpus 6 relief in petitioner's case; and (c) advise petitioner that all possible grounds for habeas corpus relief 7 must be raised at this time in this case, and that the failure to do so will likely result in the omitted 8 grounds being barred from future review under the rules regarding abuse of the writ. 9 IT IS FURTHER ORDERED that counsel for respondents SHALL make available to

10 counsel for petitioner (photocopying costs at the latter's expense), as soon as reasonably possible, a 11 copy of whatever portions of the state court record they possess regarding the judgment petitioner is 12 challenging herein. 13 IT IS FURTHER ORDERED that counsel for petitioner SHALL FILE AND SERVE a

14 Third Amended Petition for Writ of Habeas Corpus within ninety (90) days of the entry of this 15 Order. The Third Amended Petition shall include all known grounds for relief (both exhausted and 16 unexhausted). Respondents shall have forty-five (45) days after service of the Third Amended 17 Petition within which to answer, or otherwise respond to the same. If an answer is filed, petitioner 18 shall have forty-five (45) days from the date of service of the answer to file a reply. 19 20 21 22 23 24 25 26 27 28 2 LARRY R. HICKS UNITED STATES DISTRICT JUDGE DATED this 4th day of March, 2010.