Mosby v. Baker et al

Filing 11

ORDER Motion for extension of time 8 is granted nunc prop tunc. FPD appointed as counsel. Petitioner shall have 120 days to file amended petition (please see attached for further details/deadlines). Hard copy of exhibits shall be delivered - for this case - to the Reno Clerk's Office. Clerk shall send copy of this order to petitioner at ESP (sent via USPS 8/6/14). Signed by Judge Miranda M. Du on 8/6/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARVIN MOSBY,

Case No. 3:14-cv-00251-MMD-WGC

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Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

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This habeas matter comes before the Court on petitioner’s proper person motion

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for an extension of time to file an inmate account statement (dkt. no. 8) and further

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following upon the filing of the statement and the notice of appearance by petitioner’s

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counsel (dkt. no. 9).

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The extension motion will be granted nunc pro tunc. The Court understands that

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it was more expedient for petitioner to file the particular motion and statement in proper

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person, but petitioner must, of course, seek relief only through counsel moving forward.

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The materials submitted demonstrate petitioner’s financial eligibility for appointed

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counsel.

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It is therefore ordered that petitioner’s motion for an extension of time to file an

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inmate account statement (dkt. no. 8) is granted nunc pro tunc in connection with the

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statement filed on July 31, 2014.

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It is further 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 Ryan Norwood,

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Esq., 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

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

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extension thereof signifies or will signify any implied finding as to the expiration of the

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federal limitation period and/or of a basis for tolling during the time period established.

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Petitioner at all times remains responsible for calculating the running of the federal

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

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established or extensions granted herein. That is, by setting a deadline to amend the

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petition and/or by granting any extension thereof, the Court makes no finding or

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representation that the petition, any amendments thereto, and/or any claims contained

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therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225,

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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

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

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being subject to the normal briefing schedule under the local rules. Any response filed

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shall comply with the remaining provisions below, which are entered pursuant to

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Habeas Rule 4.

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It is further 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

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

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

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embedded in the answer. Procedural defenses omitted from such motion to dismiss will

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be subject to potential waiver. Respondents shall not file a response in this case that

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consolidates their procedural defenses, if any, with their response on the merits, except

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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

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shall do so within the single motion to dismiss, not in the answer; and (b) they shall

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specifically direct their argument to the standard for dismissal under § 2254(b)(2) set

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forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural

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defenses, including exhaustion, shall be included with the merits in an answer. All

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procedural defenses, including exhaustion, instead 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

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

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It is further ordered petitioner shall have thirty (30) days from service of the

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

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requests for relief by respondents by motion otherwise being subject to the normal

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briefing schedule under the local rules.

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It is further 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

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

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identified by the number or numbers of the exhibits in the attachment.

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It is further ordered that the hard copy of any exhibits filed by either counsel shall
be delivered ─ for this case ─ to the Reno Clerk's Office.

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The Clerk shall send an informational hard copy of this order also to petitioner in

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proper person at the Ely State Prison address and note the hard copy transmittal on the

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docket in a manner consistent with the Clerk’s current practice for same.

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DATED THIS 6th day of August 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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