Hernandez v. MCDANIEL et al

Filing 94

ORDER granting 92 Motion to Vacate Stay and Reopen Proceeding. Third Amended Petition due within 60 days. Please see attached for further deadlines/details. Signed by Judge Larry R. Hicks on 2/20/15. (Copies have been distributed pursuant to the NEF - JC)

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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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vs.
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RENEE BAKER, et al.,
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Respondents.
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3:09-cv-0545-LRH-WGC
ORDER

This capital habeas corpus action was stayed on May 21, 2010 (ECF No. 71), pending the
petitioner’s exhaustion of claims in state court.

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On January 22, 2015, the petitioner, Fernando Navarro Hernandez, filed a motion to lift the

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stay (ECF No. 92). In that motion, Hernandez states that the state-court proceedings have concluded.

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Respondents filed a response to Hernandez’ motion on February 3, 2015 (ECF No. 93), indicating

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that they do not oppose the lifting of the stay. There was no reply. The court will grant Hernandez’

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motion to lift the stay. The court will also set a schedule for further litigation of this action

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IT IS THEREFORE ORDERED that petitioner’s Motion to Vacate Stay and Reopen

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Capital Habeas Corpus Proceeding (ECF No. 92) is GRANTED. The stay of this action is vacated.

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IT IS FURTHER ORDERED that the following schedule shall govern the further litigation
of this action:
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Amended Petition. If necessary, petitioner shall file and serve a third amended

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petition for writ of habeas corpus within 60 days after entry of this order. The third amended

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petition shall specifically state whether each ground for relief has been exhausted in state court; for

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each claim that has been exhausted in state court, the third amended petition shall state how, when,

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and where that occurred. If petitioner determines that a third amended petition need not be filed,

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then, within 60 days after entry of this order, petitioner shall file and serve a statement to that effect.

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2.

Response to Petition. Respondents shall have 60 days following service of the third

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amended petition to file and serve an answer or other response to the third amended petition. If

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petitioner does not file a third amended petition, respondents shall have 60 days following the due-

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date for the third amended petition to file and serve an answer or other response to petitioner’s

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second amended petition.

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3.

Reply and Response to Reply. Petitioner shall have 45 days following service of

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an answer to file and serve a reply. Respondents shall thereafter have 30 days following service of a

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reply to file and serve a response to the reply.

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4.

Briefing of Motion to Dismiss. If respondents file a motion to dismiss, petitioner

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shall have 60 days following service of the motion to file and serve a response to the motion.

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Respondents shall thereafter have 30 days following service of the response to file and serve a reply.

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5.

Discovery. If petitioner wishes to move for leave to conduct discovery, petitioner

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shall file and serve such motion concurrently with, but separate from, the response to respondents’

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motion to dismiss or the reply to respondents’ answer. Any motion for leave to conduct discovery

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filed by petitioner before that time may be considered premature, and may be denied, without

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prejudice, on that basis. Respondents shall file and serve a response to any such motion concurrently

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with, but separate from, their reply in support of their motion to dismiss or their response to

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petitioner’s reply. Thereafter, petitioner shall have 20 days to file and serve a reply in support of the

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motion for leave to conduct discovery.
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Evidentiary Hearing. If petitioner wishes to request an evidentiary hearing,

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petitioner shall file and serve a motion for an evidentiary hearing concurrently with, but separate

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from, the response to respondents’ motion to dismiss or the reply to respondents’ answer. Any

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motion for an evidentiary hearing filed by petitioner before that time may be considered premature,

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and may be denied, without prejudice, on that basis. The motion for an evidentiary hearing must

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specifically address why an evidentiary hearing is required, and must meet the requirements of

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28 U.S.C. § 2254(e). The motion must state whether an evidentiary hearing was held in state court,

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and, if so, state where the transcript is located in the record. If petitioner files a motion for an

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evidentiary hearing, respondents shall file and serve a response to that motion concurrently with, but

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separate from, their reply in support of their motion to dismiss or their response to petitioner’s reply.

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Thereafter, petitioner shall have 20 days to file and serve a reply in support of the motion for an

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evidentiary hearing.

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Dated this 20th day of February, 2015.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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