Cortinas v. State Of Nevada

Filing 23

ORDER that petitioner shall file a supplemental brief by 12/14/2017 setting forth all arguments and evidence as indicated in this order; granting ECF No. Motion for Appointment of Counsel to Represent Petitioner; FPD will present petitioner in all federal proceedings related to this matter; granting ECF Nos. 15 Motion to Seal and 18 Motion to partially waive Local Rule IA 10-3(e) to the extent it requires descriptors of each exhibit on its cover sheet. Signed by Judge Larry R. Hicks on 10/30/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ARMANDO B. CORTINAS, JR.,
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Petitioner,
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v.
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JO GENTRY, et al.
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Respondents.
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___________________________________ )

3:10-CV-00439-LRH-RAM
ORDER

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Petitioner initiated this action on July 16, 2010, by filing a pro se document entitled

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“Application For Certificate of Appealability.” (ECF No. 1). The court’s internal docketing

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notes of October 26, 2010, reflect that, following review the application, the court intended to

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send petitioner a letter requesting a case number related to his application. Internal docketing

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notes further reflect that on November 1, 2010, the clerk’s office sent petitioner a letter along

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with a habeas form.

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More than four years later, petitioner filed a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254, which was assigned Case Number 2:14-cv-01549-RFB-CWH. Following

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a motion to dismiss by the respondents in 2:14-cv-01549-RFB-CWH, the court in that case

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appointed the Federal Public Defender to represent petitioner and ordered the FPD to file an

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amended petition no later than March 22, 2017. Instead of filing an amended petition, the

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FPD moved to stay 2:14-cv-01549-RFB-CWH on the grounds that petitioner’s claims should

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be litigated in the instant, earlier filed action. The FPD then filed in this case a request to be

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appointed to represent petitioner (ECF No. 4), a motion for leave to file an amended petition

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(ECF No. 5), an amended petition (ECF No. 6), and other miscellaneous motions.

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In the motion for leave to amend, petitioner argues that there is a chance the court in

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Case Number 2:14-cv-01549-RFB-CWH will find his 2014 petition untimely and that he would

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be better served by litigating his claims in this case instead. Petitioner’s motion relies primarily

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on an argument that any amended petition in this case would relate back to his 2010 filing.

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However, in the event that argument does not carry the day, petitioner argues that the court

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should order his amended petition filed nunc pro tunc to a timely date to “right its wrong.”

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Additionally, petitioner has a potential equitable tolling argument. Neither of these arguments

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has been fully developed in the pleadings before the court – the former in fact was raised for

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the first time in the reply. The court finds that, in order to determine the motion for leave to

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amend, it requires supplemental briefing on those issues.

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IT IS THEREFORE ORDERED that petitioner shall file a supplemental brief setting forth

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all arguments and evidence he has – other than those arguments already raised – as to why

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and for what period of time he should be entitled to equitable tolling in this case and why the

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manner in which the court handled his original filing entitles him to the relief he requests.

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Petitioner shall file said supplemental brief within forty-five days of the date of this order.

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Respondents shall file any response within thirty days of service of the supplemental brief.

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The court will defer ruling on the motion for leave to amend (ECF No. 5) and the motion for in

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forma pauperis status (ECF No. 22) until after it has received and considered the petitioner’s

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supplemental brief and the response thereto.

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IT FURTHER IS ORDERED that, given petitioner’s inability to afford counsel (see ECF

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No. 22) and in the interests of justice, the FPD’s request to be appointed to represent

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petitioner in this case (ECF No. 4) is GRANTED. The FPD will represent petitioner in all

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federal proceedings related to this matter, including any appeals or certiorari proceedings,

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unless allowed to withdraw.

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IT IS FURTHER ORDERED that petitioner’s motion to seal (ECF No. 15) is GRANTED.

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Petitioner is granted leave to file Exhibits 127A, 127B, 127C and 127D (ECF Nos. 16 & 17)

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to the amended petition under seal. The court finds, in accordance with the requirements of

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Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), that a compelling

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need to protect petitioner’s sensitive personal information contained in the sealed exhibits

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outweighs the public interest in open access to court records.

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Finally, petitioner’s motion to partially waive Local Rule IA 10-3(e) to the extent it
requires descriptors of each exhibit on its cover sheet (ECF No. 18) is GRANTED.

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DATED this 30th day of October, 2017.
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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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