Moore v. Baca et al

Filing 5

ORDER directing Clerk to file petition and e-serve it on respondents (NEF sent 6/2/2015). Respondents to respond to petition within 90 days; petitioner to reply within 30 days thereafter. Additional exhibits to be filed with separate index. Hard copies of any exhibits shall be forwarded, for this case, to staff attorneys in Reno. (See order for further details.) Signed by Judge Robert C. Jones on 6/1/2015. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 DONN RICHARD MOORE, 10 11 12 13 14 15 ) ) Petitioner, ) ) vs. ) ) I. BACA, et al., ) ) Respondents. ) ____________________________________/ 3:15-cv-00101-RCJ-WGC ORDER On March 25, 2015, this court denied petitioner’s motion to proceed in forma pauperis and 16 directed him to pay the filing fee in order to proceed with his petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. ECF No. 3. He has complied with that order and paid the required 18 fee. ECF No. 4. The court has reviewed the petition pursuant to Habeas Rule 4, and the petition 19 shall be docketed and served. 20 A petition for federal habeas corpus should include all claims for relief of which petitioner is 21 aware. If petitioner fails to include such a claim in his petition, he may be forever barred from 22 seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If 23 petitioner is aware of any claim not included in his petition, he should notify the court of that as soon 24 as possible, perhaps by means of a motion to amend his petition to add the claim. 25 26 IT THEREFORE IS ORDERED that the Clerk shall FILE the petition for writ of habeas corpus and ELECTRONICALLY SERVE it on the respondents. 1 IT FURTHER IS ORDERED that respondents shall file a response to the petition, 2 including potentially a motion to dismiss, within ninety (90) days of service of the petition, with any 3 requests for relief by petitioner by motion otherwise being subject to the normal briefing schedule 4 under the local rules. Any response filed shall comply with the remaining provisions below, 5 which are entered pursuant to Habeas Rule 4. 6 IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this 7 case shall be raised together in a single consolidated motion to dismiss. In other words, the court 8 does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple 9 successive motions to dismiss or embedded in the answer. Procedural defenses omitted from such 10 motion to dismiss will be subject to potential waiver. Respondents shall not file a response in this 11 case that consolidates their procedural defenses, if any, with their response on the merits, except 12 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 13 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within 14 the single motion to dismiss not in the answer; and (b) they shall specifically direct their argument to 15 the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 16 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be included with the 17 merits in an answer. All procedural defenses, including exhaustion, instead must be raised by 18 motion to dismiss. 19 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 20 specifically cite to and address the applicable state court written decision and state court record 21 materials, if any, regarding each claim within the response as to that claim. 22 IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the 23 answer, motion to dismiss, or other response to file a reply or opposition, with any other requests for 24 relief by respondents by motion otherwise being subject to the normal briefing schedule under the 25 local rules. 26 2 1 IT FURTHER IS ORDERED that any additional state court record exhibits filed herein by 2 either petitioner or respondents shall be filed with a separate index of exhibits identifying the 3 exhibits by number. The CM/ECF attachments that are filed further shall be identified by the 4 number or numbers of the exhibits in the attachment. The hard copy of any additional state court 5 record exhibits shall be forwarded – for this case – to the staff attorneys in Reno. 6 Dated: this ______ day of June, 2015. Dated June 1, 2015. 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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