Wilson v. LeGrand et al

Filing 10

ORDER appointing the FPD as counsel for petitioner, with Jason F. Carr appearing as petitioner's counsel of record. Petitioner shall have 120 days from entry of this order within which to file an amended petition and/or seek other appropriate relief, respondents shall have 60 days to respond, and petitioner shall have 30 days to reply. Any exhibits shall be filed with separate index. Hard copies of any exhibits shall be delivered, for this case, to the Clerk's Office in Reno. The Clerk shall send a copy of this order to the CJA Coordinator for this division (NEF sent 6/3/2014). (Amended Petition due by 10/1/2014.) Signed by Judge Robert C. Jones on 6/3/2014. (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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MICHAEL DUANE WILSON,

3:14-cv-00071-RCJ-VPC
Petitioner,

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ORDER
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vs.

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ROBERT LEGRAND, et al.,
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Respondents.
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This habeas matter comes before the Court following upon the notice (#9) of
appearance by petitioner’s counsel. The filing fee has been paid .

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

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

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appearing as petitioner’s counsel of record.

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

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hundred twenty (120) days from entry of this order within which to file an amended petition

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and/or seek other appropriate relief. Neither the foregoing deadline nor any extension thereof

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signifies or will signify any implied finding as to the expiration of the federal limitation period

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and/or of a basis for tolling during the time period established. Petitioner at all times remains

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responsible for calculating the running of the federal limitation period and timely asserting

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claims, without regard to any deadlines established or extensions granted herein. That is, by

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setting a deadline to amend the petition and/or by granting any extension thereof, the Court

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makes no finding or representation that the petition, any amendments thereto, and/or any

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claims contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729

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

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

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

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amended petition, with any requests for relief by petitioner by motion otherwise being subject

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to the normal briefing schedule under the local rules. Any response filed shall comply with

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the remaining provisions below, which are entered pursuant to Habeas Rule 4.

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

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the counseled amended petition shall be raised together in a single consolidated motion to

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dismiss. In other words, the Court does not wish to address any procedural defenses raised

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herein either in seriatum fashion in multiple successive motions to dismiss or embedded in

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the answer. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents shall not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C.

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§ 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single

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

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,

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623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be

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included with the merits in an answer. All procedural defenses, including exhaustion, instead

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must be raised by motion to dismiss.

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IT IS FURTHER 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

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

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from service of

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the answer, motion to dismiss, or other response to file a reply or opposition, with any other

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requests for relief by the parties by motion otherwise being subject to the normal briefing

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schedule under the local rules.
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IT IS FURTHER ORDERED that any additional state court record exhibits filed herein

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by either petitioner or respondents shall be filed with a separate index of exhibits identifying

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the exhibits by number. The CM/ECF attachments that are filed further shall be identified by

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the number or numbers of the exhibits in the attachment.

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The hard copy of any exhibits filed by either counsel shall be delivered – for this
case – to the Clerk's Office in Reno.

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The Clerk shall SEND a copy of this order to the CJA Coordinator for this division.

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DATED: June 3, 2014

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__________________________________
ROBERT C. JONES
United States District Judge

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