Howard v. Wickham et al
ORDER - The FPD, through Jeremy C. Baron, Esq.,is appointed as counsel for petitioner. (E-service to CJA Coordinator 10/18/2017.) Amended petition due by 1/17/2018. Answer/response to amended petition due within 60 days of service of petition; Reply due within 30 days of service of answer. Signed by Judge Howard D. McKibben on 10/19/2017. (Copies have been distributed pursuant to the NEF - DRM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
HAROLD WICKHAM, et al.,
Following upon the entry of appearance (ECF No. 12) by the Federal Public Defender,
IT IS ORDERED that the Federal Public Defender, through Jeremy C. Baron, Esq.,is
appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will
represent petitioner in all federal proceedings related to this matter, including any appeals or
certiorari proceedings, unless allowed to withdraw.
IT FURTHER IS ORDERED that petitioner shall have until up to and including ninety
(90) days from entry of this order within which to file an amended petition and/or seek other
appropriate relief. Neither the foregoing deadline nor any extension thereof signifies or will
signify any implied finding as to the expiration of the federal limitation period and/or of a basis
for tolling during the time period established. Petitioner at all times remains responsible for
calculating the running of the federal limitation period and timely asserting claims, without
regard to any deadlines established or extensions granted herein. That is, by setting a
deadline to amend the petition and/or by granting any extension thereof, the Court makes no
finding or representation that the petition, any amendments thereto, and/or any claims
contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d
1225, 1235 (9th Cir. 2013).
IT FURTHER IS ORDERED that respondents shall file a response to the amended
petition, including potentially by motion to dismiss, within sixty (60) days of service of an
amended petition and that petitioner may file a reply thereto within thirty (30) days of service
of the answer. The response and reply time to any motion filed by either party, including a
motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b).
IT FURTHER IS ORDERED that any procedural defenses raised by respondents to
the counseled amended petition shall be raised together in a single consolidated motion to
dismiss. In other words, the Court does not wish to address any procedural defenses raised
herein either in seriatum fashion in multiple successive motions to dismiss or embedded in
the answer. Procedural defenses omitted from such motion to dismiss will be subject to
potential waiver. Respondents shall not file a response in this case that consolidates their
procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C.
§ 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek
dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single
motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the
standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,
623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be
included with the merits in an answer. All procedural defenses, including exhaustion, instead
must be raised by motion to dismiss.
DATED: October 19, 2017.
HOWARD D. MCKIBBEN
United States District Judge
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