Smith v. Cox et al

Filing 4

ORDER Clerk shall file and electronically serve petition on respondents. Response to petition due within 90 days. Hard copy of state court record exhibits shall be forwarded - for this case - to staff attorneys in Reno. Please see attached for further details and deadlines. Signed by Judge Miranda M. Du on 4/23/15. (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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LARRY SMITH,

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Case No. 3:15-cv-00034-MMD-VPC
Petitioner,

ORDER

v.
JAMES COX, et al.,
Respondents.

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Larry Smith, a Nevada prisoner, has submitted a petition for a writ of habeas

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corpus, pursuant to 28 U.S.C. § 2254 (dkt. nos. 1-1, 1-2) and has paid the filing fee (see

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dkt. no. 3). The Court has reviewed the petition pursuant to Rule 4 of the Rules

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Governing Habeas Cases, and it shall be docketed and served upon the respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

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It therefore is ordered that the Clerk shall file and electronically serve the petition
(dkt. nos. 1-1, 1-2) on the respondents.

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It is further ordered that respondents shall file a response to the petition,

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including potentially by motion to dismiss, within ninety (90) days of service of the

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

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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 in this

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case shall be raised together in a single consolidated motion to dismiss. In other words,

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

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

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Procedural defenses omitted from such motion to dismiss will be subject to potential

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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

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U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents

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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

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argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v.

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

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

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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 that 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 additional state court record 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. The hard copy of

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any additional state court record exhibits shall be forwarded ― for this case ― to the

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staff attorneys in Reno.

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DATED THIS 23rd day of April 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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