Rosales v. Byrne et al

Filing 43

ORDER granting ECF No. 42 Motion to Extend Time : Reply to ECF No. 41 Response re ECF No. 38 Motion to Stay Case due by 5/31/2018. Signed by Judge Robert C. Jones on 5/17/2018. (Copies have been distributed pursuant to the NEF - DRM)

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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
JEREMY C. BARON
Assistant Federal Public Defender
District of Columbia Bar No. 1021801
411 E. Bonneville Ave. Suite 250
Las Vegas, Nevada 89101
[phone]
[phone] (fax)
[e-mail]

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Attorneys for Petitioner Gary Craig Rosales

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GARY CRAIG ROSALES,
Petitioner,

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v.
Q. BYRNE, et al.,
Respondents.

Case No. 3:16-cv-00003-RCJ-WGC
UNOPPOSED MOTION FOR
EXTENSION OF TIME IN WHICH TO
FILE REPLY IN SUPPORT OF
MOTION FOR STAY
(First Request)

Petitioner Gary Craig Rosales hereby moves this Court for an extension of time
of fourteen (14) days, from May 17, 2018, to and including May 31, 2018, in which to
file a reply in support of Mr. Rosales’s April 26, 2018, motion for a stay (ECF No. 38).

POINTS AND AUTHORITIES

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1.

Mr. Rosales filed a counseled amended petition in this case on October

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28, 2016. ECF No. 15. The respondents filed a partial motion to dismiss on May 23,

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2017 (ECF No. 25), and Mr. Rosales opposed that motion (ECF No. 26). The Court

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issued an order resolving the motion to dismiss on March 27, 2018. ECF No. 37. It

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rejected the respondents’ argument that some of the claims in the amended petition

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were untimely. But the Court agreed that Grounds One, Two, Three, and Four were

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unexhausted. The Court ordered Mr. Rosales to respond accordingly. Id. at 8.

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2.

In response to the Court’s order, undersigned counsel filed on Mr.

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Rosales’s behalf a motion requesting that the Court stay the case and hold it in

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abeyance while Mr. Rosales exhausts his claims in state court. ECF No. 38. The

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respondents filed an opposition to the motion on May 10, 2018. ECF No. 41. Mr.

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Rosales’s reply in support of his motion is due on May 17, 2018.

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3.

Undersigned counsel has made diligent efforts to prepare and file the

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reply by the deadline. However, undersigned counsel respectfully suggests that

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additional time is necessary in order to file the reply.

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4.

In their opposition, the respondents argue (among other things) that Mr.

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Rosales does not have good cause for a stay because state post-conviction counsel

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made a strategic decision not to pursue the unexhausted claims during the prior state

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post-conviction proceedings. Additional time is necessary to evaluate and respond to

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that argument.

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5.

Undersigned counsel has had many professional obligations in the past

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week, including, among others, a multi-day training seminar held on May 10 and

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May 11, 2018; an amended petition filed on May 14, 2018, in Elliott v. McDaniel, Case

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No. 3:11-cv-00041-MMD-VPC (D. Nev.); second-chairing an oral argument held in

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San Francisco on May 16, 2018, in LaPena v. Grigas, Case No. 15-16154 (9th Cir.);

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and a second motion for discovery filed on May 17, 2018, along with the close of

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discovery on May 17, 2018, in Slaughter v. Baker, Case No. 3:16-cv-00721-RCJ-WGC

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(D. Nev.).

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6.

Undersigned counsel has many additional professional obligations in

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the coming weeks, including, among others, an amended petition due on May 21,

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2018, in Burch v. Baker, Case No. 2:17-cv-00656-MMD-VCF (D. Nev.); an opening

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brief due on May 21, 2018, in Mercado v. State, Case No. 74513 (Nev. Sup. Ct.); and

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an amended petition due on May 30, 2018, in Howard v. Wickham, Case No. 3:16-cv-

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00665-HDM-VPC (D. Nev.).

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7.

Therefore, undersigned counsel seeks an additional fourteen (14) days,

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up to and including May 31, 2018, in which to file the reply in support of the motion

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for a stay. This is undersigned counsel’s first request for an extension of time in

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which to file the reply.

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8.

On May 17, 2018, undersigned counsel contacted Deputy Attorney

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General Erin L. Bittick and informed her of this request for an extension of time. As

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a matter of professional courtesy, Ms. Bittick had no objection to the request. Ms.

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Bittick’s lack of objection should not be considered as a waiver of any procedural

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defenses or statute of limitations challenges, or construed as agreeing with the

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accuracy of the representations in this motion.

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9.

This motion is not filed for the purpose of delay, but in the interests of

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justice, as well as in the interest of Mr. Rosales. Undersigned counsel respectfully

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requests that this Court grant this motion and order Mr. Rosales to file the reply in

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support of his motion for a stay (ECF No. 38) no later than May 31, 2018.

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Dated this 17th day of May, 2018.

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Respectfully submitted,

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RENE L. VALLADARES
Federal Public Defender

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/s/Jeremy C. Baron

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JEREMY C. BARON
Assistant Federal Public Defender

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IT IS SO ORDERED:

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______________________________
United States District Judge

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Dated: ________________________
May 17, 2018

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CERTIFICATE OF SERVICE

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I hereby certify that on May 17, 2018, I electronically filed the foregoing with

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the Clerk of the Court for the United States District Court, District of Nevada by

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using the CM/ECF system.

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Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system and include: Erin L. Bittick.

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I further certify that some of the participants in the case are not registered

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CM/ECF users. I have mailed the foregoing by First-Class Mail, postage pre-paid, or

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have dispatched it to a third party commercial carrier for delivery within three

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calendar days, to the following non-CM/ECF participants:
Gary Craig Rosales
No. 1009803
Lovelock Correctional Center
1200 Prison Road
Lovelock, NV 89419

/s/ Jessica Pillsbury

An Employee of the
Federal Public Defender

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