Cardenas v. Sandie et al

Filing 25

ORDER that FPD through S. Alex Spelman, Esq. is appointed as counsel for Petitioner; amended petition due by 9/20/2018; respondents must file a response to any amended petition within 60 days of service; any additional state court record exhibits filed herein. See Order for further details and instructions. Signed by Judge Miranda M. Du on 6/22/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOEL CARDENAS,

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Case No. 3:15-cv-00476-MMD-VPC
Petitioner,

ORDER

v.
DWIGHT NEVEN, et al.,
Respondents.

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Following the entry of appearance (ECF No. 24) by the Federal Public Defender:

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It is ordered that the Federal Public Defender, through S. Alex Spelman, 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 and including ninety (90) days

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from entry of this Order within which to file an amended petition and/or seek other

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appropriate relief, including a renewed motion to stay and abey, a motion to dismiss his

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unexhausted claims, or a motion to dismiss the entire Petition without prejudice so that

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Petitioner may return to state court to exhaust his claims. Neither the foregoing deadline

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nor any extension thereof signifies or will signify any implied finding as to the expiration

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of the federal limitation period and/or of a basis for tolling during the time period

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established. Petitioner at all times remains responsible for calculating the running of the

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federal limitation period and timely asserting claims, without regard to any deadlines

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established or extensions granted herein. That is, by setting a deadline to amend the

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Petition and/or by granting any extension thereof, the Court makes no finding or

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representation that the Petition, any amendments thereto, and/or any claims contained

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therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235

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(9th Cir. 2013).

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It is further ordered that Respondents must file a response to any amended

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petition, including potentially by motion to dismiss, within sixty (60) days of service of the

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amended petition and that Petitioner may file a reply thereto within thirty (30) days of

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service of the answer. The response and reply time to any motion filed by either party,

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including a motion filed in lieu of a pleading, will be governed instead by 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 must be raised together in a single consolidated motion to

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dismiss. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents must not file a response in this case that consolidates their

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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

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do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within

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the single motion to dismiss not in the answer; and (b) they must specifically direct their

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argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart,

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406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including

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exhaustion, should be included with the merits in an answer. All procedural defenses,

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

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either Petitioner or Respondents must 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 must 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 must 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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DATED THIS 22nd day of June 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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