Elliott v. McDaniel et al

Filing 43

ORDER granting Petitioner's ECF No. 39 Motion for Reconsideration; vacating the Court's ECF No. 38 Order; denying as moot Petitioner's ECF No. 41 Motion for Extension of Time to Respond to the Show Cause Orde r; directing counsel for Petitioner to meet with Petitioner as soon as reasonably possible. Amended petition due within 90 days, response due within 45 days thereafter, and reply due within 30 days after response. Any exhibits to be filed with separate index. Courtesy copies of any exhibits to be forwarded -- for this case -- to staff attorneys in Reno. Signed by Judge Miranda M. Du on 8/18/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ROBERT W. ELLIOTT, 10 Case No. 3:11-cv-00041-MMD-VPC Petitioner, ORDER v. 11 E.K. MCDANIEL, et al., 12 Respondents. 13 14 On October 29, 2014, this Court dismissed without prejudice petitioner Robert W. 15 Elliott’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 because it 16 was wholly unexhausted (ECF No. 23). Judgment was entered (ECF No. 24). Elliott 17 appealed, and on October 3, 2016, the Ninth Circuit Court of Appeals vacated and 18 remanded in light of its recent decision in Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) 19 (ECF No. 35). The court of appeals directed that this Court determine whether Elliott was 20 entitled to a stay of his federal habeas petition. Accordingly, this Court issued an order 21 directing petitioner to demonstrate that he was entitled to a stay of these federal 22 proceedings. (ECF No. 38.) 23 Petitioner filed a counseled motion for reconsideration of that order, indicating that 24 the Federal Public Defender now represents petitioner. (ECF No. 39.) In light of the fact 25 that petitioner now has counsel, he seeks, through such counsel, leave to file an amended 26 petition. He argues that allowing the filing of a counseled, amended petition will promote 27 judicial economy and streamline this habeas litigation moving forward. Respondents have 28 not responded to petitioner’s motion in any way. 1 2 3 4 5 6 Good cause appearing, it is ordered that petitioner’s motion for reconsideration (ECF No. 39) is granted. It is further ordered that this court’s order dated December 13, 2016 (ECF No. 38) is vacated. It is further ordered that petitioner’s motion for extension of time to respond to the show-cause order (ECF No. 41) is denied as moot. 7 It is further ordered that counsel for petitioner must meet with petitioner as soon as 8 reasonably possible, if counsel has not already done so, to: (a) review the procedures 9 applicable in cases under 28 U.S.C. § 2254; (b) discuss and explore with petitioner, as 10 fully as possible, the potential grounds for habeas corpus relief in petitioner’s case; and 11 (c) advise petitioner that all possible grounds for habeas corpus relief must be raised at 12 this time in this action and that the failure to do so will likely result in any omitted grounds 13 being barred from future review. 14 It is further ordered that petitioner will have ninety (90) days from the date of this 15 order to file and serve on respondents an amended petition for writ of habeas corpus, 16 which must include all known grounds for relief (both exhausted and unexhausted). 17 It is further ordered that respondents will have forty-five (45) days after service of 18 an amended petition within which to answer, or otherwise respond to, the amended 19 petition. If petitioner does not file an amended petition, respondents will have forty-five 20 (45) days from the date on which the amended petition is due within which to answer, or 21 otherwise respond to, petitioner’s original petition. 22 It is further ordered that, if and when respondents file an answer or other 23 responsive pleading, petitioner will have thirty (30) days after service of the answer or 24 responsive pleading to file and serve his response. 25 It is further ordered that any state court record exhibits filed by the parties herein 26 must be filed with an index of exhibits identifying the exhibits by number or letter. The 27 CM/ECF attachments that are filed must further be identified by the number or numbers 28 (or letter or letters) of the exhibits in the attachment. 2 1 It is further ordered that the parties must send courtesy copies of all exhibits to the 2 Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 S. 3 Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 4 outside of the mailing address label. Additionally, in the future, all parties must provide 5 courtesy copies of any additional exhibits submitted to the Court in this case, in the 6 manner described above. 7 DATED THIS 18th day of August 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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