Hernandez v. MCDANIEL et al

Filing 307

ORDERED that Respondents' Motion for Enlargement of Time (ECF No. 306 ) is DENIED as moot. IT IS FURTHER ORDERED that Petitioner's Motion for Evidentiary Hearing (ECF No. 304 ) and Motion for Leave to Conduct Discovery (ECF No . 305 ) are DENIED, as moot, and without prejudice. IT IS FURTHER ORDERED that Respondents will have 60 days from the date of this order (8/27/2022) to file an amended answer. In all other respects, the schedule for further proceedings will be governed by the order entered February 20, 2015 (ECF No. 94 ) (45 days for amended reply, etc.). Signed by Judge Larry R. Hicks on 6/28/2022. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:09-cv-00545-LRH-CSD Document 307 Filed 06/28/22 Page 1 of 2

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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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v.

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Case No. 3:09-cv-00545-LRH-CSD
ORDER

WILLIAM REUBART, et al.,
Respondents.

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In this capital habeas corpus action, the respondents filed an answer on

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July 14, 2021 (ECF No. 285), and the petitioner, Fernando Navarro Hernandez,

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represented by appointed counsel, filed a reply on May 4, 2022 (ECF No. 301). Along

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with his reply, on May 4, 2022, Hernandez filed a motion for leave to conduct discovery

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(ECF No. 305) and a motion for evidentiary hearing (ECF No. 304).

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Respondents were then to file a response to Hernandez’s reply, and responses

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to his two motions, by June 3, 2022. See Order entered February 20, 2015 (ECF No. 94

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(scheduling order)). On June 3, 2022, Respondents filed a motion for extension of time

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(ECF No. 306), requesting a 60-day extension of those deadlines.

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On May 23, 2022, the United States Supreme Court decided Shinn v. Ramirez,

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___ U.S. ___, 2022 WL 1611786 (2022) (factual development in support of procedurally

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defaulted claim of ineffective assistance of trial counsel, under Martinez v. Ryan, 566

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U.S. 1 (2012), subject to requirements of 28 U.S.C. § 2254(e)(2)). It appears to the

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Court that Shinn may substantially affect the positions of the parties with respect to

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many of Hernandez’s claims of ineffective assistance of trial counsel. Recognizing the

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effect that Shinn may have with regard to many of Hernandez’s claims, the Court will

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require the parties to amend their answer and reply (as opposed to supplementing their
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Case 3:09-cv-00545-LRH-CSD Document 307 Filed 06/28/22 Page 2 of 2

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pleadings), so that the resulting briefing will be clear. The amended answer and reply

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will be treated as superseding the original pleadings; therefore, they should be drafted

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to be complete in themselves, without reference to the original answer and reply.

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Furthermore, it appears that Shinn may substantially affect Hernandez’s motion

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for leave to conduct discovery and motion for evidentiary hearing. The Court will,

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therefore, deny, as moot, and without prejudice, those motions filed by Hernandez on

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May 4, 2022 (ECF Nos. 304, 305). Hernandez may file a new motion for leave to

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conduct discovery and/or a new motion for evidentiary hearing with his amended reply,

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as contemplated in the scheduling order entered February 20, 2015 (ECF No. 94).

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The Court will set a due date for Respondents’ amended answer. Beyond that,

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the schedule for Hernandez’s amended reply, any motion for leave to conduct discovery

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and/or motion for evidentiary hearing, and other further briefing, will be governed by the

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order entered on February 20, 2015 (ECF No. 94).

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IT IS THEREFORE ORDERED that Respondents’ Motion for Enlargement of
Time (ECF No. 306) is DENIED as moot.
IT IS FURTHER ORDERED that Petitioner’s Motion for Evidentiary Hearing (ECF

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No. 304) and Motion for Leave to Conduct Discovery (ECF No. 305) are DENIED, as

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moot, and without prejudice.

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IT IS FURTHER ORDERED that Respondents will have 60 days from the date of

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this order to file an amended answer. In all other respects, the schedule for further

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proceedings will be governed by the order entered February 20, 2015 (ECF No. 94) (45

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days for amended reply, etc.).

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DATED THIS 28th day of June, 2022.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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