Noguera v. Smith et al

Filing 27

ORDER directing respondents to file an answer to 6 petition within 45 days. Petitioner shall file and serve a reply within 45 days of the answer. Any exhibits shall be filed with separate index. Hard copies of any exhibits shall be forwarded, for this case, to the staff attorneys in Reno. Answer due 8/22/2014. Signed by Judge Larry R. Hicks on 7/7/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CARLOS NOGUERA,

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Petitioner,

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vs.

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ROBERT LEGRAND, et al.,

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Case No. 3:11-cv-00428-LRH-WGC

Respondents.

ORDER

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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a
Nevada state prisoner represented by counsel.
Petitioner dispatched his federal habeas petition to this Court on June 1, 2011. (ECF No. 6).

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The federal habeas petition contains 15 grounds for relief. (Id.). On September 2, 2011,

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respondents filed a motion dismiss, arguing that Grounds 5, 9, and 10 were unexhausted. (ECF No.

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11). By order filed December 14, 2011, this Court granted respondents’ motion and dismissed the

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petition in its entirety. (ECF No. 14). Judgment was entered on the same date. (ECF No. 15).

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Petitioner appealed. (ECF No. 16). The United States Court of Appeals for the Ninth

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Circuit entered an order on September 14, 2012, requiring this Court to locate and appoint counsel

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to represent petitioner. (ECF No. 19). By order filed September 19, 2012, this Court appointed the

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Federal Public Defender to represent petitioner. (ECF No. 21). On February 25, 2014, the Ninth

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Circuit filed an unpublished memorandum opinion reversing this Court’s dismissal of the petition.

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(ECF No. 24). The Ninth Circuit’s opinion stated, in relevant part:

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Noguera appeals the district court’s dismissal of his habeas corpus
petition for failure to exhaust. We hold that the district court erred in

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dismissing Noguera’s petition, as Noguera had exhausted the three
claims in question. He raised those claims on direct appeal to the
Nevada Supreme Court and alerted the court that the claims were
federal in nature by citing specific provisions of the federal
Constitution. He also included a statement of facts that entitled him
to relief. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003)
(“To satisfy the exhaustion requirement, the claim must have been
presented previously to the Nevada Supreme Court, ‘includ[ing]
reference to a specific federal constitutional guarantee, as well as a
statement of facts that entitle the petitioner to relief.’”) (quoting Gray
v. Netherland, 518 U.S. 152, 162-63 (1996)).

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(ECF No. 24, at p. 2). The Court of Appeals issued its mandate on March 20, 2014. (ECF No. 25).

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On March 26, 2014, this Court entered an order on mandate. (ECF No. 26). Respondents are now

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required to file an answer addressing the merits of all grounds of the petition. Thereafter, petitioner

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is granted the opportunity to file a reply.

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IT IS THEREFORE ORDERED that respondents SHALL FILE AN ANSWER to the

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petition within forty-five (45) days from the date of entry of this order. The answer shall include

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substantive arguments on the merits as to each ground of the petition. In filing the answer,

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respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in

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the United States District Courts under 28 U.S.C. §2254 regarding providing relevant transcripts

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and the state court record. To the extent that respondents may seek to raise procedural defenses to

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any grounds of the petition, such arguments shall be included in the answer. No further motions to

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dismiss will be entertained in this case.

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IT IS FURTHER ORDERED that petitioner SHALL FILE AND SERVE A REPLY to
the answer, within forty-five (45) days after being served with the answer.
IT FURTHER IS ORDERED that any further exhibits filed by the parties shall be filed

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with a separate index of exhibits identifying the exhibits by number or letter. The CM/ECF

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attachments that are filed further shall be identified by the number or numbers (or letter or letters) of

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the exhibits in the attachment. The hard copy of any additional exhibits shall be forwarded, for this

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case, to the staff attorneys in Reno, Nevada.

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Dated this 7th day of July, 2014.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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