Byford v. Nevada Attorney General et al

Filing 88

ORDER granting ECF No. 85 Petitioner's Renewed Motion to Vacate Stay and Reopen Habeas Corpus Proceeding; the stay of this action is lifted; the schedule listed herein will govern the further proceedings in this action. See order pdf for further details and instructions. Signed by Judge James C. Mahan on 10/24/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT ROYCE BYFORD,

Case No. 3:11-cv-00112-JCM-WGC

Petitioner,
v.

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ORDER GRANTING RENEWED
MOTION TO VACATE STAY AND
REOPEN HABEAS CORPUS
PROCEEDING (ECF NO. 85)

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WILLIAM GITTERE, et al.,
Respondents.

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In this capital habeas corpus action, on February 1, 2013, the Court granted a

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motion filed by the petitioner, Robert Royce Byford, requesting that the action be stayed

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pending his further state-court litigation. See Order entered February 1, 2013 (ECF No.

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53). On March 13, 2017, the Court granted Byford’s motion to temporarily lift the stay to

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allow him to add to his petition in this action a new claim, one based on Hurst v. Florida,

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136 S.Ct. 616 (2016). See Order entered March 13, 2017 (ECF No. 73). In all other

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respects the stay remained in place following the March 13, 2017, order. See id.

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On August 13, 2019, Byford filed a motion to lift the stay (ECF No. 81), but the Court

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determined that, at that time, the state-court proceeding had not been completed, and

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the Court denied that motion. See Order entered September 10, 2019 (ECF No. 84).

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On October 9, 2019, Byford filed a renewed motion to lift the stay (ECF No. 85),

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stating that his state-court proceedings have now been concluded. On October 22,

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2019, the respondents filed a response to that motion (ECF No. 87) stating that they do

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not oppose the motion. The Court will grant Byford’s motion to lift the stay and will set a

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schedule for further proceedings in this action.

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IT IS THEREFORE ORDERED that Petitioner’s Renewed Motion to Vacate Stay

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and Reopen Habeas Corpus Proceeding (ECF No. 85) is GRANTED. The stay of this

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action is lifted.

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IT IS FURTHER ORDERED that the following schedule will govern the further
proceedings in this action:
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Amended Petition. Petitioner will have 60 days from the date of this order

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to file a third amended petition for writ of habeas corpus. The third amended petition

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

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for each claim that has been exhausted in state court, the third amended petition must

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state how, when, and where that occurred.
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Response to Petition. Respondents will have 90 days following the filing

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

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petition.

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3.

Reply and Response to Reply. Petitioner will have 45 days following the

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

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filing of a reply to file a response to the reply.

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4.

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

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Petitioner will have 60 days following the filing of the motion to file a response to the

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motion. Respondents will thereafter have 30 days following the filing of the response to

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file a reply.

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5.

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

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Petitioner must file such motion 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

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leave to conduct discovery filed by Petitioner before that time may be considered

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premature, and may be denied, without prejudice, on that basis. Respondents must file

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a response to any such motion concurrently with, but separate from, their reply in

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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 a reply in support of the motion for leave to conduct

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discovery.

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Evidentiary Hearing. If Petitioner wishes to request an evidentiary

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hearing, Petitioner must file a motion for an evidentiary hearing concurrently with, but

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separate from, the response to Respondents’ motion to dismiss or the reply to

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Respondents’ answer. Any motion for an evidentiary hearing filed by Petitioner before

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that time may be considered premature, and may be denied, without prejudice, on that

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basis. The motion for an evidentiary hearing must specifically address why an

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evidentiary hearing is required and must meet the requirements of 28 U.S.C. § 2254(e).

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The motion must state whether an evidentiary hearing was held in state court, and, if so,

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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

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

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Petitioner’s reply. Thereafter, Petitioner will have 20 days to file a reply in support of the

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motion for an evidentiary hearing.

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DATED October 24, 2019.
THIS ___ day of ______________________, 2019.

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JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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