Gallegos v. Baca et al

Filing 39

ORDER that Petitioner's Motion for Leave to File a Third-Amended Petition ECF No. 36 is GRANTED; petitioner shall file and serve his Third-Amended petition by 03/18/2017; an answer or other responsive pleading and any subsequent response thereto by petition, shall be filed as set forth in the Scheduling Order ECF No. 10 ; Petitioner's Motion for Leave to File Exhibit Under Seal ECF No. 27 is GRANTED; Respondent's Motion to Dismiss ECF No. 30 is DEN IED without prejudice; Petitioner's Motion to Extend Time to file an opposition to the Motion to Dismiss ECF No. 35 is DENIED as moot; Petitioner's Motion for Extension of Time to File a Second-Amended Petition ECF No. 22 is GRANTED nunc pro tunc</I. Signed by Judge Robert C. Jones on 02/16/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FERNANDO GALLEGOS,

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Case No. 3:15-cv-00254-RCJ-VPC
Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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This habeas matter comes before the court on petitioner Fernando Gallegos’
counseled motion for leave to file a third-amended petition (ECF No. 36).
Counsel for Gallegos indicates that respondents correctly point out in their

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motion to dismiss that Gallegos made an error in time calculation, and his protective

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petition was filed four days late. Id. at 2. Gallegos, therefore, recognizes that the

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protective petition is “unavailable as a relation-back anchor.” Id. He seeks leave to file

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a third-amended petition in order to eliminate claims for which there is no credible

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relation-back argument. Id. Respondents oppose on the basis that they have already

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expended the effort and resources to file a motion to dismiss (ECF No. 37). Good

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cause appearing, Gallegos’ motion for leave to file a third-amended petition is granted.

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The court shall dismiss respondents’ motion to dismiss without prejudice and with leave

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renew as respondents deem appropriate.

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IT IS THEREFORE ORDERED that petitioner’s motion for leave to file a third-

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amended petition (ECF No. 36) is GRANTED. Within thirty (30) days of the date of

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this order, petitioner shall file and serve his third-amended petition.
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IT IS FURTHER ORDERED that an answer or other responsive pleading and
any subsequent response thereto by petitioner, shall be filed as set forth in the
scheduling order dated December 18, 2015 (ECF No. 10).
IT IS FURTHER ORDERED that petitioner’s motion for leave to file exhibit under
seal (ECF No. 27) is GRANTED.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 30) is
DENIED without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time to file
an opposition to the motion to dismiss (ECF No. 35) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time to file a
second-amended petition (ECF No. 22) is GRANTED nunc pro tunc.

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Dated: This 16th day of February, 2017.
DATED: 13 February 2017.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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