Marcelli v. Baca et al

Filing 5

ORDER granting 4 Motion/Application for Leave to Proceed in forma pauperis. Clerk shall file and electronically serve petition 1 -1 on respondents. Response to petition due within 90 days. Hard copy of state court exhibits shall be forwarded - for this case - to staff attorneys in Reno. Please see attached for additional details and deadlines. Signed by Judge Robert C. Jones on 4/27/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY MICHAEL MARCELLI,
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Petitioner,

Case No. 3:15-cv-00063-RCJ-WGC

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vs.

ORDER

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ISIDRO BACA, et al.,
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Respondents.
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Before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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filed by a Nevada prisoner (ECF #1-1). Petitioner’s application to proceed in forma pauperis (ECF #4)

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is granted. The court has reviewed the petition pursuant to Habeas Rule 4, and the petition shall be

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docketed and served.

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

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aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking

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federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is

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aware of any 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.

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IT THEREFORE IS ORDERED that petitioner’s application to proceed in forma pauperis
(ECF #4) is GRANTED.

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IT FURTHER IS ORDERED that the Clerk shall FILE and ELECTRONICALLY SERVE
the petition (ECF #1-1) on respondents.

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

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potentially by motion to dismiss, within ninety (90) days of service of the petition, with any requests

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for relief by petitioner by motion otherwise being subject to the normal briefing schedule under the local

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rules. Any response filed shall comply with the remaining provisions below, which are entered

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pursuant to Habeas Rule 4.

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this case

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shall be raised together in a single consolidated motion to dismiss. In other words, the court does not

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wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive

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

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dismiss will 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 pursuant to 28

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U.S.C. § 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 motion to

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

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dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In

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short, no procedural 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 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 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 requests for

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

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rules.

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IT FURTHER IS 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 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. The hard copy of any additional state court record exhibits

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shall be forwarded – for this case – to the staff attorneys in Reno.

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Dated this 27th day of April, 2015.
Dated, this ___ day of April, 2015.
___________________________________
UNITED STATES DISTRICT JUDGE

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