Weber v. Cortez Masto

Filing 77

ORDER - The Motion to vacate the stay and reopen these proceedings (ECF No. 74 ) is granted. The stay of this action is lifted. Petitioner will have 60 days from the date of this order to file a Third Amended Petition for Writ of Habea s Corpus. Respondents will have 60 days following the filing of the Third Amended Petition to file an answer or other response to the Third Amended Petition. Petitioner will have 45 days following the filing of an answer to file a reply. See PDF image for additional details. Signed by Judge Richard F. Boulware, II on 6/3/2021. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TIMMY JOHN WEBER,

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v.

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Petitioner,

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ORDER

WILLIAM GITTERE, 1 et al.,

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Case No. 3:11-cv-00104-RFB-WGC

Respondents.

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This capital habeas corpus action has been stayed since October 15, 2012, while

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the petitioner, Timmy John Weber, exhausted claims in state court. ECF No. 49. On March 5,

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2021, Weber, represented by appointed counsel, filed a motion to vacate the stay and reopen these

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proceedings. ECF No. 74. In that motion, Weber states that his state-court proceedings have

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concluded. On March 11, 2021, the Respondents filed a notice stating that they do not oppose

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Weber’s motion. ECF No. 76.

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The court will grant Weber’s motion to vacate the stay and will set a schedule for further
proceedings in this action.

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IT IS THEREFORE ORDERED that the motion to vacate the stay and reopen these
proceedings (ECF No. 74) is GRANTED. The stay of this action is lifted.

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IT IS FURTHER ORDERED that the following schedule shall govern the further
proceedings in this action:

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1. Amended Petition. Petitioner will have 60 days from the date of this order to file a third

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amended petition for writ of habeas corpus. The third amended petition must specifically state

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As the current warden of Ely State Prison, William Gittere is substituted for Renee Baker as a respondent. See Fed.
R. Civ. P. 25(d).

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whether each ground for relief has been exhausted in state court; for each claim that has been

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exhausted in state court, the third amended petition must state how, when, and where that occurred.

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2. Response to Petition. Respondents will have 60 days following the filing of the third

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

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3. Reply and Response to Reply. Petitioner will have 45 days following the filing of an

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answer to file a reply. Respondents will thereafter have 30 days following the filing of a reply to

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file a response to the reply.

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4. Briefing of Motion to Dismiss. If Respondents file a motion to dismiss, Petitioner will

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have 60 days following service of the motion to file a response to the motion. Respondents will

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thereafter have 30 days following the filing of the response to file a reply.

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5. Discovery. If Petitioner wishes to move for leave to conduct discovery, Petitioner must

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file such motion concurrently with, but separate from, the response to Respondents’ motion to

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dismiss or the reply to Respondents’ answer. Any motion for leave to conduct discovery filed by

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Petitioner before that time may be considered premature, and may be denied, without prejudice,

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on that basis. Respondents must file a response to any such motion concurrently with, but separate

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

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Thereafter, Petitioner will have 20 days to file a reply in support of the motion for leave to conduct

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discovery.

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6. Evidentiary Hearing. If Petitioner wishes to request an evidentiary hearing, Petitioner

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must file a motion for an evidentiary hearing concurrently with, but separate from, the response to

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Respondents’ motion to dismiss or the reply to Respondents’ answer. Any motion for an

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evidentiary hearing filed by Petitioner before that time may be considered premature, and may be

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denied, without prejudice, on that basis. The motion for an evidentiary hearing must specifically

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address why an evidentiary hearing is required and must meet the requirements of 28 U.S.C. §

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2254(e). The motion must state whether an evidentiary hearing was held in state court, and, if so,

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state where the transcript is located in the record. If Petitioner files a motion for an evidentiary

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hearing, Respondents must file a response to that motion concurrently with, but separate from,

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their reply in support of their motion to dismiss or their response to Petitioner’s reply. Thereafter,
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Petitioner will have 20 days to file and serve a reply in support of the motion for an evidentiary

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hearing.

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DATED: June 3, 2021
_________________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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