Nika v. McDaniel et al

Filing 140

ORDER directing Respondents within 10 days to assign responsibility for this case to an attorney other than Victor-Hugo Schulze II; granting in part and denying in part ECF No. 139 Motion for Enlargement of Time -- Reply re ECF No. 95 Motion to Dismiss, Response re ECF No. 133 Motion for Hearing, and Response re ECF No. 137 Motion for Discovery due by 1/27/2017. Signed by Judge James C. Mahan on 12/8/2016. (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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AVRAM VINETO NIKA,

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Petitioner,

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vs.

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TIMOTHY FILSON, et al.,

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3:09-cv-00178-JCM-WGC

Respondents.

ORDER

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/

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In this capital habeas corpus action, the petitioner, Avram Vineto Nika, filed a second

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amended petition for writ of habeas corpus on August 3, 2015 (ECF No. 73). Respondents filed a

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motion to dismiss on May 12, 2016 (ECF No. 95). On October 7, 2016, Nika filed an opposition to

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the motion to dismiss (ECF No. 132), and a motion for evidentiary hearing (ECF No. 133). And, on

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October 24, 2016, Nika filed a motion for leave to conduct discovery (ECF No. 137).

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Respondents were then due on November 28, 2016, to file a reply in support of their motion

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to dismiss, a response to the motion for evidentiary hearing, and a response to the motion for leave to

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conduct discovery. See Order entered October 12, 2016 (ECF No. 135); Fed. R. Civ. P. 6(d) (adding

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three days to the time for response to a motion when the motion is served by electronic means).

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In the meantime, during September and October, 2016, while the briefing of the motion to

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dismiss and related motions was ongoing, respondents filed three notices of change of attorney (ECF

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Nos. 131, 136, 138), notifying the court that the attorney who had long represented the respondents

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in this case was being replaced. The third of those notices, filed on October 25, 2016, stated that

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respondents would be represented by Senior Deputy Attorney Victor-Hugo Schulze, II, of the

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Nevada Attorney General’s Office.

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Then, on November 22, 2016, Mr. Schulze filed a motion for extension of time (ECF No.

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139), requesting an extension of time to February 19, 2017 (an 83-day extension of time) to file a

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reply in support of the motion to dismiss, a response to the motion for evidentiary hearing, and a

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response to the motion for leave to conduct discovery.

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The undersigned has ordered that Mr. Schulze is not allowed to appear in his courtroom. The
court will, therefore, require the Nevada Attorney General to assign responsibility for this case to a

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different attorney, and will set a deadline for respondents to file a notice reflecting that change of

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counsel.

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With respect to the motion for extension of time, the court finds that the motion is generally

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made in good faith and not solely for the purpose of delay, and that, in light of the substitution of

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respondents’ counsel in this capital habeas corpus action, there is good cause for an extension of

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time; however, the court finds that, under the circumstances, an 83-day extension of time requested

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by respondents is excessive. The court will extend this due date by 60 days, to January 27, 2017.

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The court will not look favorably on any motion to further extend that deadline.

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IT IS THEREFORE ORDERED that respondents shall, within 10 days, assign

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responsibility for this case to an attorney other than Victor-Hugo Schulze, II, and shall file a notice

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reflecting the substitution of counsel.

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IT IS FURTHER ORDERED that respondents’ Motion for Enlargement of Time (ECF No.

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139) is GRANTED IN PART AND DENIED IN PART. Respondents shall have until and

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including January 27, 2017, to file a reply in support of the motion to dismiss, a response to the

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motion for evidentiary hearing, and a response to the motion for leave to conduct discovery.

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...

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...

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IT IS FURTHER ORDERED that, in all other respects, the schedule for further
proceedings set forth in the order entered June 18, 2015 (ECF No. 68) shall remain in effect.
Dated Decemberday 2016.
this _____ 8, of ___________________________, 2016.

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_________________________________________
UNITED STATES DISTRICT JUDGE

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