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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BRANDEN J. HERMANSEN,

Case No. 3:17-cv-00135-MMD-VPC

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Petitioner,
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ORDER

v.
RENEE BAKER, et al.,
Respondents.

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Following upon the entry of appearance (ECF No. 13) by the Federal Public

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Defender, it is ordered that the Federal Public Defender, through Megan C. Hoffman,

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

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Counsel will represent petitioner in all federal proceedings related to this matter, including

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any appeals or certiorari proceedings, unless allowed to withdraw.

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It is further 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 and/or

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seek other appropriate relief. Neither the foregoing deadline nor any extension thereof

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signifies or will signify any implied finding as to the expiration of the federal limitation

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period and/or of a basis for tolling during the time period established. Petitioner at all times

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remains responsible for calculating the running of the federal limitation period and timely

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asserting claims, without regard to any deadlines established or extensions granted

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herein. That is, by setting a deadline to amend the petition and/or by granting any

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extension thereof, the Court makes no finding or representation that the petition, any

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amendments thereto, and/or any claims contained therein are not subject to dismissal as

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untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

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It is further ordered that respondents must 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 within thirty (30) days of service of an answer.

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

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in lieu of a pleading, will 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 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 will 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, shall 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
be delivered — for this case — to the Reno Clerk's Office.
DATED THIS 27th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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