Olsen v. LeGrand et al

Filing 33

ORDER that FPD, Jeremy C. Baron, Esq., is appointed as counsel for Petitioner; Petitioner to file an amended petition and/or seek other appropriate relief by 11/10/2018; Respondents to file a response to the amended petition within (60) days o f service of an amended petition; Petitioner to file a reply within (30) days of service; any state court record and related exhibits filed by the parties will be filed with a separate index of exhibits identifying the exhibits by number; hard copy of any exhibits filed by either counsel will be delivered to the Reno Clerk's Office. Signed by Judge Miranda M. Du on 6/12/2018. (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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CARL HENRY OLSEN, III,

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Petitioner,

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ORDER

v.
ROBERT LeGRAND, et al.,
Respondents.

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Case No. 3:15-cv-00367-MMD-WGC

Following upon the entry of appearance (ECF No. 32) by the Federal Public
Defender,

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It is ordered that the Federal Public Defender, through Jeremy C. Baron, Esq., is

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appointed as counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will

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represent Petitioner in all federal proceedings related to this matter, including any appeals

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or certiorari proceedings, unless allowed to withdraw.

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

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and fifty (150) 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 limitations

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

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remains responsible for calculating the running of the federal limitations period and timely

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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 is further ordered that Respondents will 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 within thirty (30) days of service of an answer.

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

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

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It is further 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 will

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

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

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either Petitioner or Respondents will 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 will be identified

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by the number or numbers of the exhibits in the attachment. If the exhibits filed will span
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more than one ECF Number in the record, the first document under each successive ECF

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Number will be either another copy of the index, a volume cover page, or some other

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document serving as a filler, so that each exhibit under the ECF Number thereafter will

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be listed under an attachment number (i.e., Attachment 1, 2, etc.).

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It is further ordered that the hard copy of any exhibits filed by either counsel will be
delivered – for this case – to the Reno Clerk's Office.
DATED THIS 12th day of June 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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