Navas v. Baca et al

Filing 26

ORDER that, within 45 days of entry of this order, Rs shall file a motion to dismiss restricted to exhaustion issues only. FURTHER ORD that briefing will proceed on the motion to dismiss and any motion for a stay filed thereafter as per the standard schedule for same under the local rules. FURTHER ORD that any request for a stay to exhaust the unexhausted claims must be sought by a separate motion. Signed by Judge Edward C. Reed, Jr on 5/30/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JULIO CESAR NAVAS,

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Petitioner,

3:10-cv-00647-ECR-WGC

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vs.

ORDER

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JAMES BACA, et al.
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review

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of the counseled amended petition under Rule 4 of the Rules Governing Section 2254 Cases.

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Petitioner acknowledges that certain claims in the amended petition are not yet

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exhausted and that proceedings on petitioner’s state post-conviction petition remain pending.

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In the overall scheme of the state and federal litigation, it perhaps would be most efficient at

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this juncture to suss out any additional issues that respondents might have as to exhaustion

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of the remaining allegedly exhausted claims in the petition while state proceedings still are

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pending. The Court accordingly will direct the filing of a motion to dismiss restricted to

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exhaustion issues only. In this vein, if part of petitioner’s response will be to request a stay,

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petitioner must do so in a separate motion for that relief separate and apart from the

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opposition to the motion to dismiss.

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IT THEREFORE IS ORDERED that, within forty-five (45) days of entry of this order,

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respondents shall file a motion to dismiss restricted to exhaustion issues only. All other

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issues in the case, including other procedural defenses, are deferred at this time. The failure

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to present other defenses in the initial motion to dismiss filed in response to this order shall

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not provide a basis for waiver of defenses, as the Court expressly is limiting the response to

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only issues of exhaustion.

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IT FURTHER IS ORDERED that briefing will proceed on the motion to dismiss and any

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motion for a stay filed thereafter as per the standard schedule for same under the local rules.

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IT FURTHER IS ORDERED that any request for a stay to exhaust the unexhausted

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claims must be sought by a separate motion separate and apart from any opposition to the

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motion to dismiss. Any such motion for a stay shall be filed by the due date for the opposition

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to the motion to dismiss.
DATED: May 30, 2012.

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_________________________________
EDWARD C. REED
United States District Judge

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