McCaskill v. Budge et al

Filing 83

ORDER. IT IS HEREBY ORDERED that petitioner's 81 motion for partial dismissal is GRANTED and that Grounds 2 and 7 through 11, only, are DISMISSED without prejudice. FURTHER ORDERED, respondents shall have until April 13, 2012, within which to file a reply with regard to their prior motion to dismiss. Signed by Judge Edward C. Reed, Jr on 3/30/2012. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JEREMY DALE MCCASKILL,
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Petitioner,

3:08-cv-00687-ECR-WGC

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vs.
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ORDER

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MICHAEL BUDGE, et al.,

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Respondents.

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This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on

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petitioner’s unopposed motion (#81) for partial dismissal of the claims held by the Court to be

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unexhausted.

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The Court appreciates the efforts of both counsel in taking affirmative steps to try and

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satisfy the expedited schedule set for petitioner to request relief as to the unexhausted claims

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pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Depending

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upon the relief sought and the ruling thereon, the Rose proceedings potentially could have

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led to an interim administrative closure in advance of the Congressionally-mandated reporting

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deadline for the case under the Civil Justice Reform Act (CJRA). That did not come to pass,

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but the expedited action now has the case postured to move to a conclusion promptly.

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Looking forward, the Court will be seeking to resolve the entire matter at the earliest possible

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juncture and certainly no later than the next semiannual CJRA report deadline on September

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30, 2012. Counsel therefore will need to continue to triage any scheduling conflicts that they

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have with matters on the docket of this Court by seeking any necessary extensions in later-

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filed cases rather than this case.

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The next step in the case is for respondents to have their opportunity to file a reply brief

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on their earlier motion to dismiss. The Court had suspended this final step in the briefing

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pending the outcome of the Rose proceedings. The dismissal of the unexhausted claims

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pursuant to this order moots any further argument directed to whether the unexhausted

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Grounds 7 through 11 relate back to a timely-filed claim in an earlier pleading. The only

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remaining point left for a possible reply brief pertains to respondents’ assertion of the

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procedural default defense to Ground 5(e) in part.

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The Court will set a deadline for any reply in this order and thereafter will seek to

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resolve this sole remaining issue from the motion to dismiss as promptly as possible following

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the filing of a reply or the expiration of the time for doing so. In the order resolving this

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remaining issue, the Court then will direct the filing of an answer and reply on 28-day intervals

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for each such pleading. That should have the case submitted by no later than the end of

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June for review and a final decision, if not before. The Court again emphasizes that, once

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these deadlines are set, counsel need to make every effort to file their papers by the initial

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deadline established. The Court again appreciates both counsel’s efforts in this regard on

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the expedited Rose proceedings.

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IT THEREFORE IS ORDERED that petitioner’s motion (#81) for partial dismissal is

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GRANTED and that Grounds 2 and 7 through 11, only, are DISMISSED without prejudice.

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IT FURTHER IS ORDERED that respondents shall have until April 13, 2012, within

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which to file a reply with regard to their prior motion to dismiss.
DATED: March 30, 2012.

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____________________________________
EDWARD C. REED
United States District Judge

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