Marquez v. McDaniels et al

Filing 38

ORDER granting 34 Motion to Reopen Case. Respondents to file response to 19 Amended Petition (in accordance with the terms of the attached order) within 60 days. Petitioner to file reply/opposition within 30 days from service of response. Hard copy of additional exhibits shall be forwarded for this case to staff attorneys in Las Vegas. Case reopened. Signed by Judge Larry R. Hicks on 1/28/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SAMUEL ISAAC MARQUEZ,
3:08-cv-00647-LRH-VPC
Petitioner,

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ORDER
vs.
E.K. MCDANIELS, et al.
Respondents.

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This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s
motion (#34) to reopen the case, which is not opposed (#36).
IT THEREFORE IS ORDERED that petitioner’s motion (#34) to reopen the case is GRANTED,
the stay is LIFTED, and this matter hereby is REOPENED.

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IT FURTHER IS ORDERED that, within sixty (60) days of entry of this order, respondents

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shall file a response to the amended petition (#19). Any response filed shall comply with the

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remaining provisions below, which are tailored to this particular case based upon the Court’s

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screening of the matter and which are entered pursuant to Habeas Rule 4.

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

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shall be raised together in a single consolidated motion to dismiss. In other words, the Court does not

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wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive

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motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to

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dismiss will be subject to potential waiver.

Respondents shall not file a response in this case that

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consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to

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dismiss not in the answer; and (b) they shall specifically direct their argument to the standard for

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dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

If respondents do seek

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

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the
response within which to file an opposition or reply as applicable.
The hard copy of any additional exhibits submitted shall be forwarded for this case to the
staff attorneys in Las Vegas.
DATED this 28th day of January, 2013.

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____________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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