Howard v. Wickham et al

Filing 13

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)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 LAMONT HOWARD, 9 10 Petitioner, 3:16-cv-00665-HDM-VPC vs. ORDER 11 12 HAROLD WICKHAM, et al., 13 Respondents. 14 15 Following upon the entry of appearance (ECF No. 12) by the Federal Public Defender, 16 IT IS ORDERED that the Federal Public Defender, through Jeremy C. Baron, Esq.,is 17 appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will 18 represent petitioner in all federal proceedings related to this matter, including any appeals or 19 certiorari proceedings, unless allowed to withdraw. 20 IT FURTHER IS ORDERED that petitioner shall have until up to and including ninety 21 (90) days from entry of this order within which to file an amended petition and/or seek other 22 appropriate relief. Neither the foregoing deadline nor any extension thereof signifies or will 23 signify any implied finding as to the expiration of the federal limitation period and/or of a basis 24 for tolling during the time period established. Petitioner at all times remains responsible for 25 calculating the running of the federal limitation period and timely asserting claims, without 26 regard to any deadlines established or extensions granted herein. That is, by setting a 27 deadline to amend the petition and/or by granting any extension thereof, the Court makes no 28 finding or representation that the petition, any amendments thereto, and/or any claims 1 contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 2 1225, 1235 (9th Cir. 2013). 3 IT FURTHER IS ORDERED that respondents shall file a response to the amended 4 petition, including potentially by motion to dismiss, within sixty (60) days of service of an 5 amended petition and that petitioner may file a reply thereto within thirty (30) days of service 6 of the answer. The response and reply time to any motion filed by either party, including a 7 motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b). 8 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to 9 the counseled amended petition shall be raised together in a single consolidated motion to 10 dismiss. In other words, the Court does not wish to address any procedural defenses raised 11 herein either in seriatum fashion in multiple successive motions to dismiss or embedded in 12 the answer. Procedural defenses omitted from such motion to dismiss will be subject to 13 potential waiver. Respondents shall not file a response in this case that consolidates their 14 procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. 15 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek 16 dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single 17 motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the 18 standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 19 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be 20 included with the merits in an answer. All procedural defenses, including exhaustion, instead 21 must be raised by motion to dismiss. 22 DATED: October 19, 2017. 23 24 25 26 __________________________________ HOWARD D. MCKIBBEN United States District Judge 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?