Rodney v. Baker et al

Filing 26

ORDER Motion for leave to amend 12 is denied without prejudice. Petitioner shall have 60 days to file motion for leave to amend (see attached for details). Motion to withdraw 23 is granted. Motion to dismiss 13 is wit hdrawn. Motion to seal 19 is granted. Motions for enlargement of time 11 , 24 and 25 are granted. Clerk shall send petitioner two copies of 2254 petition form with copy of instructions along with copy of original petition 7 and motion to amend 12 (mailed 2/19/14). Signed by Judge Robert C. Jones on 2/18/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KYLE J. RODNEY,
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Petitioner,

3:13-cv-00323-RCJ-VPC

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vs.
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ORDER
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WARDEN BAKER, et al.,

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Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

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motion (#12) for leave to amend the petition, respondents’ motion (#13) to dismiss the original

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petition, respondents’ motion (#19) for leave to file exhibit in camera and under seal,

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respondents’ motion (#23) to withdraw their motion to dismiss, and sundry motions (## 11,

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24 & 25) for enlargement of time filed by the parties.

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The motion to amend will be denied without prejudice.

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The scheduling order in this action stated in pertinent part: “If petitioner is aware of any

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claim not included in his petition, he should notify the Court of that as soon as possible,

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perhaps by means of a motion to amend his petition to add the claim, including the proposed

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amended petition.” #6, at 2. Petitioner has presented a motion in which he presents both

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factual allegations and extensive legal argument on additional claims. He does not attach a

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proposed amended petition including all of his claims.

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In order to amend the petition, petitioner instead must:

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(a)

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present all claims that he seeks to pursue, including from the original petition
and all amendments, in one complete, stand-alone proposed amended petition;

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(b)

use the Court’s required petition form for the amended petition;

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(c)

allege the facts supporting his claims in the amended petition, without legal
argument;

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(d)

submit the proposed pleading with a separate motion to amend; and

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(e)

present argument in the motion to amend seeking to establish that the

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proposed amendment would not be futile given any issues of exhaustion,

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timeliness and/or procedural default as to the additional claims.

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The Court will give petitioner an opportunity to file motion for leave to file an amended
petition that meets these requirements.

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If petitioner files a motion for leave to amend, respondents must respond to that

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motion, just as they must respond to all motions filed by the petitioner once the Court has

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directed a response to the petition pursuant to the habeas rules. An unopposed motion may

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be granted.

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The Court addresses the remaining motions in the disposition paragraphs below.

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IT THEREFORE IS ORDERED that petitioner’s motion (#12) for leave to amend is

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DENIED without prejudice.

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IT FURTHER IS ORDERED that petitioner shall have sixty (60) days within which to

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mail to the Clerk of Court for filing a motion for leave to amend that satisfies the requirements

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of paragraphs (a) through (e) in the text of this order, including presentation of a proposed

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amended petition. If petitioner does not do so timely, the action thereafter will proceed

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forward on the claims in the original petition (#7) only.

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IT FURTHER IS ORDERED that petitioner shall clearly title any proposed amended

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petition submitted in response to this order as an amended petition by placing the word

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"AMENDED" immediately above "Petition for a Writ of Habeas Corpus" on page 1 in the

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caption and shall place the docket number, 3:13-cv-00323-RCJ-VPC, above the word

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"AMENDED." Under Local Rule LR 15-1, the amended petition must be complete in itself

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without reference to previously filed papers. Thus, the claims and allegations that are stated

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in the amended petition will be the only matters remaining before the Court if leave to amend
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is granted. Any claims or allegations that are left out of the amended petition or that are not

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re-alleged therein then no longer will be before the Court.

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IT FURTHER IS ORDERED that respondents’ motion (#23) to withdraw respondents’
motion to dismiss is GRANTED and that the motion (#13) to dismiss is WITHDRAWN.

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IT FURTHER IS ORDERED that: (a) if petitioner files a motion for leave to amend,

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respondents shall have thirty (30) days to file an opposition to the motion and shall address

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whether issues such as exhaustion, timeliness and/or procedural default would render the

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proposed amendment futile, with petitioner thereafter having thirty (30) days to mail a reply;

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and (b) if petitioner files no motion for leave to amend, respondents shall have ninety (90)

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days from the date of entry of this order to file a renewed response to the original petition.1

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IT FURTHER IS ORDERED that respondents’ motion (#19) for leave to file petitioner’s

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presentence report under seal is GRANTED. The Court finds, in accordance with the

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requirements of Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), that

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a compelling need to protect the privacy, safety, and personal identifying information of

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petitioner and others in the material outweighs the public interest in access to court records.

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IT FURTHER IS ORDERED that all motions (## 11, 24 & 25) for an enlargement of

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time are GRANTED to the extent consistent with the deadlines established herein.

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The Clerk shall SEND petitioner two copies of a noncapital § 2254 petition form

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together with one copy of the instructions for same along with a copy of the original petition

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(#7) and his motion (#12) to amend.

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DATED:

February 18, 2014.

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_________________________________
ROBERT C. JONES
United States District Judge

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If a motion for leave to amend is filed, the Court will establish a schedule for further proceedings in
the order ruling on the motion.

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