Aguilar v. Baker et al

Filing 65

ORDER granting ECF No. 64 Motion to Lift Stay, vacating stay; directing Clerk to reopen case; giving Petitioner 30 days to file third amended petition, giving Respondents 60 days thereafter to respond, giving Petitioner 45 days thereafter to reply, and giving Respondents 30 days thereafter to respond to reply. (See order for further scheduling.) Signed by Judge Miranda M. Du on 6/6/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GILBERT DEMETRIUS AGUILAR,

Case No. 3:12-cv-00397-MMD-WGC

Petitioner,

ORDER

v.

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RENEE BAKER, et al.,
Respondents.

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This habeas corpus action was stayed on May 19, 2015 (ECF No. 60), pending
the petitioner's exhaustion of claims in state court.

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On May 13, 2016, the petitioner, Gilbert Demetrius Aguilar, filed a motion to lift

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the stay (ECF No. 64). In that motion, Aguilar states that the state-court proceedings

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have concluded. Respondents did not respond to Aguilar's motion to lift the stay.

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The Court will grant Aguilar's motion to lift the stay. The Court will also set a
schedule for further litigation of this action.
It is therefore ordered that petitioner’s Motion to Lift Stay (ECF No. 64) is
granted. The stay of this action is vacated.

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It is further ordered that the Clerk of the Court reopen this case.

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It is further ordered that the following schedule will govern the further litigation of

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this action:

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1. Amended Petition. If necessary, petitioner will file and serve a third amended

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petition for writ of habeas corpus within thirty (30) days after entry of this order. The

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third amended petition must specifically state whether each ground for relief has been

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exhausted in state court; for each claim that has been exhausted in state court, the third

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amended petition must state how, when, and where that occurred. If petitioner

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determines that a third amended petition need not be filed, then, within thirty (30) days

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after entry of this order, petitioner must file and serve a statement to that effect.

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2. Response to Petition. Respondents will have sixty (60) days following service

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

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amended petition. If petitioner does not file a third amended petition, respondents will

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have sixty (60) days following the due-date for the third amended petition to file and

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serve an answer or other response to petitioner’s second amended petition.
3.

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Reply and Response to Reply. Petitioner will have forty-five (45) days

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following service of an answer to file and serve a reply. Respondents will thereafter

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have thirty (30) days following service of a reply to file and serve a response to the

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reply.
4.

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

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petitioner will have sixty (60) days following service of the motion to file and serve a

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response to the motion. Respondents will thereafter have thirty (30) days following

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service of the response to file and serve a reply.
5.

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

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petitioner must file and serve such motion concurrently with, but separate from, the

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response to respondents’ motion to dismiss or the reply to respondents’ answer. Any

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motion for leave to conduct discovery filed by petitioner before that time may be

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considered premature, and may be denied, without prejudice, on that basis.

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Respondents must file and serve a response to any such 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 twenty (20) days to file and serve a

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reply in support of the motion for leave to conduct discovery.

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

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petitioner must file and serve 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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state where the transcript is located in the record. If petitioner files a motion for an

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evidentiary hearing, respondents must file and serve a response to that motion

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concurrently with, but separate from, their reply in support of their motion to dismiss or

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their response to petitioner’s reply. Thereafter, petitioner will have twenty (20) days to

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file and serve a reply in support of the motion for an evidentiary hearing.

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DATED THIS 6th day of June 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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