Moore v. Legrand et al

Filing 14

ORDER - FPD Jason Carr appointed as counsel for P. FURTHER ORD Amended petition due by 1/11/2015. FURTHER ORD Answer to amended petition due within 60 days of service of amended petition. FURTHER ORD Reply due within 30 days of service of answer. F URTHER ORD any state court exhibits shall be filed with index as specified herein. FURTHER ORD hard copy of any exhibits shall be delivered to Reno Clerk's Office. Signed by Judge Larry R. Hicks on 8/13/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEVELL MOORE,

No. 3:13-cv-00390-LRH-WGC
Petitioner,

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ORDER
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vs.
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LEGRAND, et al.,

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Respondents.
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This habeas matter comes before the Court following upon the notice (#13) of appearance by
petitioner's counsel.

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IT THEREFORE IS ORDERED that the Federal Public Defender's Office is appointed as

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counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B), with Jason F. Carr, Esq., appearing as

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petitioner's counsel of record.

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IT FURTHER IS ORDERED that petitioner shall have until up to and including one hundred

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fifty (150) days from entry of this order within which to file an amended petition and/or seek other

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appropriate relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any

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implied finding as to the expiration of the federal limitation period and/or of a basis for tolling during

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the time period established. Petitioner at all times remains responsible for calculating the running of

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the federal limitation period and timely asserting claims, without regard to any deadlines established

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or extensions granted herein. That is, by setting a deadline to amend the petition and/or by granting any

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extension thereof, the Court makes no finding or representation that the petition, any amendments

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thereto, and/or any claims contained therein are not subject to dismissal as untimely. See Sossa v. Diaz,

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729 F.3d 1225, 1235 (9th Cir. 2013).

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IT FURTHER IS ORDERED that respondents shall file a response to the amended petition,

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including potentially by motion to dismiss, within sixty (60) days of service of the amended petition,

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with any requests for relief by petitioner by motion otherwise being subject to the normal briefing

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schedule under the local rules. Any response filed shall comply with the remaining provisions below,

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which are entered pursuant to Habeas Rule 4.

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the

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counseled amended petition shall be raised together in a single consolidated motion to dismiss. In other

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words, the Court does not wish to address any procedural defenses raised herein either in seriatum

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fashion in multiple successive motions to dismiss or embedded in the answer. Procedural defenses

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omitted from such motion to dismiss will be subject to potential waiver. Respondents shall not file a

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response in this case that consolidates their procedural defenses, if any, with their response on the

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merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit.

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If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within

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the single motion to dismiss not in the answer; and (b) they shall specifically direct their argument to

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the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th

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Cir. 2005). In short, no procedural defenses, including exhaustion, shall be included with the merits

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in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to

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dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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IT FURTHER IS ORDERED petitioner shall have thirty (30) days from service of the answer,

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motion to dismiss, or other response to file a reply or opposition, with any other requests for relief by

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respondents by motion otherwise being subject to the normal briefing schedule under the local rules.

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IT FURTHER IS ORDERED that any state court record and related exhibits filed herein by

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either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits
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by number. The CM/ECF attachments that are filed further shall be identified by the number or

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numbers of the exhibits in the attachment.

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IT FURTHER IS ORDERED that the hard copy of any exhibits filed by either counsel shall be

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delivered -- for this case -- to the Reno Clerk's Office.

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DATED this 13th day of August, 2014.

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____________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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