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)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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LAMONT HOWARD,

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Petitioner,

3:16-cv-00665-HDM-VPC

vs.

ORDER

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HAROLD WICKHAM, et al.,

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Respondents.

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Following upon the entry of appearance (ECF No. 12) by the Federal Public Defender,

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IT IS ORDERED that the Federal Public Defender, through Jeremy C. Baron, Esq.,is

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appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will

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represent petitioner in all federal proceedings related to this matter, including any appeals or

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certiorari proceedings, unless allowed to withdraw.

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IT FURTHER IS ORDERED that petitioner shall have until up to and including ninety

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(90) days from entry of this order within which to file an amended petition and/or seek other

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appropriate relief. Neither the foregoing deadline nor any extension thereof signifies or will

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signify any implied finding as to the expiration of the federal limitation period and/or of a basis

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

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calculating the running of the federal limitation period and timely asserting claims, without

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

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

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finding or representation that the petition, any amendments thereto, and/or any claims

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contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d

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1225, 1235 (9th Cir. 2013).

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IT FURTHER IS ORDERED that respondents shall file a response to the amended

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petition, including potentially by motion to dismiss, within sixty (60) days of service of an

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amended petition and that petitioner may file a reply thereto within thirty (30) days of service

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of the 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, shall be governed instead by Local Rule LR 7-2(b).

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IT FURTHER IS ORDERED that any procedural defenses raised by respondents to

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the counseled amended petition shall 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 raised

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herein either in seriatum fashion in multiple successive motions to dismiss or embedded in

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the answer. Procedural defenses omitted from such motion to dismiss will be subject to

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potential waiver. Respondents shall not file a response in this case that consolidates their

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procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C.

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§ 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single

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motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,

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623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be

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included with the merits in an answer. All procedural defenses, including exhaustion, instead

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must be raised by motion to dismiss.

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DATED: October 19, 2017.

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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