Nicholson v. Baker et al

Filing 35

ORDER that Petitioner's unopposed motion for leave to file an amended petition ECF No. 33 is granted; amended petition for writ of habeas corpus due 01/05/2019; Respondents to file a response to the amended petition within (60) days of service of an amended petition; Petitioner may file a reply within (30) days of service of the answer; any exhibits filed by the parties must be filed with a separate index of exhibits identifying the exhibits by number; hard copy of any exhibits must be delivered to Reno Clerk's Office (See Order for further details and information). Signed by Judge Miranda M. Du on 9/6/2018. (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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RICHARD NICHOLSON,

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Case No. 3:16-cv-00486-MMD-WGC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

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Good cause appearing, Petitioner’s unopposed motion for leave to file an amended

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petition (ECF No. 33) is granted. Given Petitioner’s mental health issues and the need for

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counsel to fully review the record, Petitioner will have 120 days from the date of entry of

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this order to file an amended petition for writ of habeas corpus in this case.

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

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twenty (120) days from entry of this order within which to file an amended petition. Neither

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the foregoing deadline nor any extension thereof signifies or will signify any implied finding

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as to the expiration of the federal limitation period and/or of a basis for tolling during the

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time period established. Petitioner at all times remains responsible for calculating the

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running of the federal limitation period and timely asserting claims, without regard to any

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

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

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or 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 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 thereto within thirty (30) days of service of the

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

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motion filed 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 must 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 must 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 shall

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do so within the single motion to dismiss not in the answer; and (b) they shall 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, may 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 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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It is further ordered that the hard copy of any exhibits filed by either counsel must

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be delivered—for this case—to the Reno Clerk’s Office.

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DATED THIS 6th day of September 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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