Hermansen v. Baker et al

Filing 14

ORDER re ECF No. 13 Notice of Appearance by FPD. Petitioner has until 3/27/2018 to file an amended petition; response/answer to the petition due within 60 days thereafter; reply/opposition due 30 days after service of answer; any additional state court record exhibits filed herein; parties shall send copies of all exhibits to the Reno Clerk's Office. See order for further details and instructions. Signed by Judge Miranda M. Du on 11/27/2017. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 BRANDEN J. HERMANSEN, Case No. 3:17-cv-00135-MMD-VPC 9 Petitioner, 10 11 ORDER v. RENEE BAKER, et al., Respondents. 12 13 Following upon the entry of appearance (ECF No. 13) by the Federal Public 14 Defender, it is ordered that the Federal Public Defender, through Megan C. Hoffman, 15 Esq., is appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). 16 Counsel will represent petitioner in all federal proceedings related to this matter, including 17 any appeals or certiorari proceedings, unless allowed to withdraw. 18 It is further ordered that petitioner will have until up to and including one hundred 19 twenty (120) days from entry of this order within which to file an amended petition and/or 20 seek other appropriate relief. Neither the foregoing deadline nor any extension thereof 21 signifies or will signify any implied finding as to the expiration of the federal limitation 22 period and/or of a basis for tolling during the time period established. Petitioner at all times 23 remains responsible for calculating the running of the federal limitation period and timely 24 asserting claims, without regard to any deadlines established or extensions granted 25 herein. That is, by setting a deadline to amend the petition and/or by granting any 26 extension thereof, the Court makes no finding or representation that the petition, any 27 amendments thereto, and/or any claims contained therein are not subject to dismissal as 28 untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 1 It is further ordered that respondents must file a response to the amended petition, 2 including potentially by motion to dismiss, within sixty (60) days of service of an amended 3 petition and that petitioner may file a reply within thirty (30) days of service of an answer. 4 The response and reply time to any motion filed by either party, including a motion filed 5 in lieu of a pleading, will be governed instead by Local Rule LR 7-2(b). 6 It further is ordered that any procedural defenses raised by respondents to the 7 counseled amended petition must be raised together in a single consolidated motion to 8 dismiss. In other words, the Court does not wish to address any procedural defenses 9 raised herein either in seriatum fashion in multiple successive motions to dismiss or 10 embedded in the answer. Procedural defenses omitted from such motion to dismiss will 11 be subject to potential waiver. Respondents will not file a response in this case that 12 consolidates their procedural defenses, if any, with their response on the merits, except 13 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 14 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 15 do so within the single motion to dismiss not in the answer; and (b) they shall specifically 16 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett 17 v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 18 including exhaustion, shall be included with the merits in an answer. All procedural 19 defenses, including exhaustion, instead must be raised by motion to dismiss. 20 It is further ordered that, in any answer filed on the merits, respondents must 21 specifically cite to and address the applicable state court written decision and state court 22 record materials, if any, regarding each claim within the response as to that claim. 23 It is further ordered that any state court record and related exhibits filed herein by 24 either petitioner or respondents must be filed with a separate index of exhibits identifying 25 the exhibits by number. The CM/ECF attachments that are filed further must be identified 26 by the number or numbers of the exhibits in the attachment. If the exhibits filed will span 27 more than one ECF Number in the record, the first document under each successive ECF 28 Number must be either another copy of the index, a volume cover page, or some other 2 1 document serving as a filler, so that each exhibit under the ECF Number thereafter will 2 be listed under an attachment number (i.e., Attachment 1, 2, etc.). 3 4 5 It is further ordered that the hard copy of any exhibits filed by either counsel must be delivered — for this case — to the Reno Clerk's Office. DATED THIS 27th day of November 2017. 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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