Thomas v. Neven et al

Filing 39

ORDER - Jamie J. Resch, Esq., is appointed as counsel for petitioner. Amended petition due by 2/2/2018. Response to the amended petition, due within 60 days of service thereof; and, reply due 30 days thereafter. Any additional state court record and related exhibits filed herein by either petitioner or respondents must be filed with a separate index of exhibits as specified herein. Following entry of Mr. Resch as counsel of record on the docket, the Clerk of Court will provide counsel, upo n his request, with a single set of electronic copies of all prior filings herein in a manner consistent with the Clerk's current practice, such as regeneration of notices of electronic filing. The Clerk further will send a copy of this order to the petitioner in proper person at the last institutional address in the record and reflect said transmittal on the docket. ( Copy mailed to P at NNCC on 10/5/2017.) ( See pdf Order for full details and specifics. ) Signed by Judge Miranda M. Du on 10/5/2017. (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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KENNETH THOMAS,

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Case No. 3:15-cv-00071-MMD-WGC
Petitioner,

ORDER

v.
D. W. NEVEN, et al.,
Respondents.

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Following upon the Court’s prior order directing substitution of counsel, it is ordered

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that Jamie J. Resch, Esq., Resch Law, PLLC, 2620 Regatta Drive, Suite 102, Las Vegas,

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NV 89128, [phone], is appointed as counsel for petitioner pursuant to 18 U.S.C.

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§ 3006A(a)(2)(B). Counsel will represent petitioner in all federal proceedings related to

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this matter, including any appeals or certiorari proceedings, unless allowed to withdraw.

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It further is ordered that petitioner will have until up to and including one hundred

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

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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

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

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times remains responsible for calculating the running of the federal limitation period and

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timely asserting claims, without regard to any deadlines established or extensions granted

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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

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amendments thereto, and/or any claims contained therein are not subject to dismissal as

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untimely. See Sossa v. Diaz, 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 an amended

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petition and that petitioner may file a reply thereto within thirty (30) days of service of the

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answer. The response and reply time to any motion filed by either party, including a

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motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b).

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It further is ordered that any procedural defenses raised by respondents to the

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counseled amended petition will 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 will 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. If

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

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

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

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v. 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 further is ordered that, in any answer filed on the merits, respondents must

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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 further is ordered that any additional state court record and related exhibits filed

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herein by either petitioner or respondents must be filed with a separate index of exhibits

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identifying the exhibits by number and generally in the same manner as ECF Nos. 21-27.

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Following entry of Mr. Resch as counsel of record on the docket, the Clerk of Court

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will provide counsel, upon his request, with a single set of electronic copies of all prior

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filings herein in a manner consistent with the Clerk’s current practice, such as

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regeneration of notices of electronic filing.

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The Clerk further will send a copy of this order to the petitioner in proper person at

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the last institutional address in the record and reflect said transmittal either via the notice

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of electronic filing or on the docket, in a manner consistent with the Clerk’s current

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practice.

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DATED THIS 5th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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