Hernandez v. MCDANIEL et al

Filing 236

ORDERED that Petitioner's motion for extension of time(ECF No. 235) is DENIED. IT IS FURTHER ORDERED that Petitioner will have 7 days from the date of this order (6/16/2020) to file any motion for leave to conduct discovery relative to the pending motion to dismiss. After such motion is filed, or after that deadline passes without any such motion filed, Respondents will have 30 days to file a reply in support of their motion to dismiss and a response to any motion for leave to c onduct discovery. IT IS FURTHER ORDERED that, in all other respects, the schedule for further proceedings set forth in the order entered February 20, 2015 (ECF No. 94 ) will remain in effect. Signed by Judge Larry R. Hicks on 6/9/2020. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FERNANDO NAVARRO HERNANDEZ,

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Petitioner,

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Case No. 3:09-cv-00545-LRH-WGC

v.

ORDER DENYING
MOTION FOR EXTENSION OF TIME
(ECF NO. 235)

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WILLIAM GITTERE, et al.,
Respondents.

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In this capital habeas corpus action, the Respondents filed a motion to dismiss

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on December 24, 2019 (ECF No. 224). Petitioner Fernando Navarro Hernandez,

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represented by appointed counsel, filed an opposition to the motion to dismiss on

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June 8, 2020 (ECF No. 234). Respondents’ reply is due July 8, 2020. See Order

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entered February 20, 2015 (ECF No. 94) (30 days for reply).

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With his response to the motion to dismiss, Hernandez filed a motion for

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extension of time (ECF No. 235), requesting a 90-day extension of time, to

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September 6, 2020, to file a motion for leave to conduct discovery. Under the

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scheduling order in this case, entered February 20, 2015 (ECF No. 94), any motion for

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leave to conduct discovery related to the motion to dismiss was due on the same date

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as the opposition to the motion to dismiss.

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The motion to dismiss and Hernandez’s response to it raise predominantly legal

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issues. It appears the main issues are whether the three new claims pled in

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Hernandez’s Fifth Amended Petition (ECF No. 221) relate back to the filing of his

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original petition for purposes of application of the statute of limitations, and whether the
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three new claims have been exhausted in state court. Those are issues that can be

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resolved based upon the record on file in this action. Hernandez does make an

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argument that he is entitled to equitable tolling, but that argument does not appear to

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turn on any factual allegations that would warrant discovery. In short, there is no

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indication, in the motion to dismiss, Hernandez’s response to that motion, or

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Hernandez’s motion for extension of time, that discovery relative to the motion to

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dismiss is warranted.

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Hernandez’s counsel states in the motion for extension of time that he needs to

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speak with Hernandez about the contemplated motion for leave to conduct discovery

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before filing it, and, because of complications caused by the COVID-19 pandemic, he

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needs 90 days to do that. Under the circumstances, with no suggestion why discovery

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might be required with respect to the motion to dismiss, the Court finds that Hernandez

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does not show good cause for such a delay of this action. The Court will deny

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Hernandez’s motion for extension of time. However, in case Hernandez still wishes to

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file a motion for leave to conduct discovery relative to the motion to dismiss, without

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such delay, the Court will grant a short extension of time for the filing of the discovery

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motion, and, in turn, Respondents’ reply in support of their motion to dismiss and their

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response to any discovery motion filed by Hernandez.

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This order has no impact on the question of any discovery Hernandez may wish

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to seek relative to the merits of any of the three new claims. To the extent those new

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claims survive the motion to dismiss, they will be subject to merits briefing, likely

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including at least a supplement to Respondents’ answer and a supplement to

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Hernandez’s reply. Under the scheduling order (ECF No 95), Hernandez would then be

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able to seek discovery relative to the merits of those claims if he believes it warranted.

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Such a motion for leave to conduct discovery relative to the merits of the new claims

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would be due with Hernandez’s supplement to his reply.

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IT IS THEREFORE ORDERED that Petitioner’s motion for extension of time
(ECF No. 235) is DENIED.

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IT IS FURTHER ORDERED that Petitioner will have 7 days from the date of this

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order to file any motion for leave to conduct discovery relative to the pending motion to

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dismiss. After such motion is filed, or after that deadline passes without any such motion

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filed, Respondents will have 30 days to file a reply in support of their motion to dismiss

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and a response to any motion for leave to conduct discovery.

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IT IS FURTHER ORDERED that, in all other respects, the schedule for further
proceedings set forth in the order entered February 20, 2015 (ECF No. 94) will remain
in effect.

This is good LRH signature

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DATED THIS 9th day of June, 2020.

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LARRY R. HICKS,
UNITED STATES DISTRICT JUDGE

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