O'Keefe v. LeGrand

Filing 10

ORDER - P's motion for relief (ECF No. 5 ) is granted. Clerk is directed to reopen this action. Clerk shall file the petition. Clerk shall add AG as counsel for Rs. Clerk shall electronically serve Rs a copy of the petition and this order. (E-service 10/14/2016.) Clerk shall return to P a copy of the petition. (Mailed 10/14/2016.) Answer/response petition due by 11/28/2016. Any exhibits filed by the parties must be filed with a separate index of exhibits as specified herein. The hard copy of any additional state court record exhibits must be forwarded for this case to the staff attorneys in Las Vegas. Henceforth P must serve upon Rs a copy of every pleading, submitted for consideration, together with a certificate of s ervice. Clerk of the Court send a copy of this order to the United States Court of Appeals for the Ninth Circuit, Case No. 16-16546. (Email (NEF) sent to 9th Ckt. on 10/14/2016.) Signed by Judge Miranda M. Du on 10/13/2016. (Copies have been distributed pursuant to the NEF - DRM) Modified on 10/14/2016 to correct file date (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,

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Case No. 3:16-cv-00430-MMD-VPC
Petitioner,

ORDER

v.
ROBERT LEGRAND, et al.,
Respondents.

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The Court dismissed this action because petitioner had neither filed an

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application to proceed in forma pauperis nor paid the filing fee. (ECF No. 3.) Petitioner

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has filed a motion for relief (ECF No. 5), in which he shows that he had submitted a

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request to prison officials to pay the fee around the same time that he mailed his

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habeas corpus petition to the Court. The Court received that payment the day after

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petitioner filed his motion for relief. The Court grants petitioner’s motion and reinstates

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the action.

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Petitioner is a prisoner in the custody of the Nevada Department of Corrections.

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He is challenging the validity of a detainer placed by the State of Ohio. The Court will

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serve upon respondents for a response, but it is possible that a more suitable forum

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would be a federal district court in Ohio. See Braden v. 30th Judicial Circuit Court, 410

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U.S. 484, 499 n.15 (1973)

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It is therefore ordered that petitioner’s motion for relief (ECF No. 5) is granted.
The Clerk of the Court is directed to reopen this action.

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It is further ordered that the Clerk of the Court file the petition for a writ of habeas
corpus.

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It is further ordered that the Clerk add Adam Paul Laxalt, Attorney General for the
State of Nevada, as counsel for respondents.

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It is further ordered that the Clerk electronically serve upon respondents a copy

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of the petition and this order. In addition, the Clerk will return to petitioner a copy of the

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petition.

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It is further ordered that respondents will have forty-five (45) days from the date

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on which the petition was served to answer or otherwise respond to the petition.

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Respondents must raise all potential affirmative defenses in the initial responsive

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pleading, including untimeliness, lack of exhaustion, and procedural default. Successive

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motions to dismiss will not be entertained. If respondents file and serve an answer, then

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they must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United

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States District Courts, and then petitioner will have forty-five (45) days from the date on

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which the answer is served to file a reply. If respondents file a motion, then the briefing

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schedule of Local Rule LR 7-2 shall apply.

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It is further ordered that any exhibits filed by the parties must be filed with a

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separate index of exhibits identifying the exhibits by number or letter. The CM/ECF

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attachments that are filed further must be identified by the number or numbers (or letter

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or letters) of the exhibits in the attachment. The hard copy of any additional state court

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record exhibits must be forwarded — for this case — to the staff attorneys in Las Vegas.

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It is further ordered that, henceforth, petitioner must serve upon respondents or,

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if appearance has been entered by counsel, upon the attorney(s), a copy of every

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pleading, motion or other document submitted for consideration by the court. Petitioner

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must include with the original paper submitted for filing a certificate stating the date that

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a true and correct copy of the document was mailed to the respondents or counsel for

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the respondents. The Court may disregard any paper received by a district judge or

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magistrate judge that has not been filed with the Clerk, and any paper received by a

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district judge, magistrate judge, or the Clerk that fails to include a certificate of service.

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It is further ordered that the Clerk of the Court send a copy of this order to the
United States Court of Appeals for the Ninth Circuit, Case No. 16-16546.
DATED THIS 13th day of October 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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