Turner v. Baker et al

Filing 32

ORDERED that Mario D. Valencia's motion to withdraw as counsel (ECF No. 31 ) is GRANTED. Mario D. Valencia is released as counsel. Christopher R. Oram, a CJA panel attorney will represent petitioner in all future proceedings in thi s court relating to this matter. CJA counsel Christopher R. Oram shall enter a notice of appearance within 20 days of the date of this order (9/27/2021). The scheduling order at ECF No. 23 is VACATED. Petitioner's motion for e xtension of time to file an amended petition (ECF No. 28) is DENIED as moot. Respondents' motion for leave to file exhibit in camera and under seal (ECF No. 29 ) is GRANTED. CJA counsel for petitioner must meet with petiti oner as soon as reasonably possible as detailed herein. Counsel for petitioner shall file an amended petition within 90 days (12/6/2021). A response to the petition is due within 90 days of service of the petition. Petitioner will then have 45 days from service of the answer to file a reply. Respondents must file a set of state court exhibits and an index as specified herein. Respondents must send a hard copy of all pleadings and indices of exhibits ONLY filed for this case to Reno "Staff Attorney" as detailed herein. Signed by Judge Howard D. McKibben on 9/7/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:17-cv-00151-HDM-VPC Document 32 Filed 09/07/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ALQUANDRE H. TURNER,
v.

Case No. 3:17-cv-00151-HDM-VPC
Petitioner,

ORDER

RENEE BAKER, et al.,
Respondents.
This is Alquandre H. Turner’s 28 U.S.C. § 2254 habeas corpus petition. Criminal

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Justice Act (CJA) counsel Mario D. Valencia has filed a motion to withdraw as counsel

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for Turner (ECF No. 31). Good cause appearing, the motion is granted.

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Also before the court is respondents’ motion for leave to file Turner’s

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presentence investigation report in camera and under seal (ECF No. 29). While there is

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a presumption favoring public access to judicial filings and documents, see Nixon v.

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Warner Communications, Inc., 435 U.S. 589, 597 (1978), a party seeking to seal a

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judicial record may overcome the presumption by demonstrating “compelling reasons”

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that outweigh the public policies favoring disclosure, Kamakana v. City and County of

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Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations omitted); see also Center

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for Auto Safety v. Chrysler Group, LLC., 809 F.3d 1092 (9th Cir. 2016). In general,

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“compelling reasons” exist where the records may be used for improper purposes.

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Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598).

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Here, respondents explain that the presentence investigation report contains
confidential information. They also state that the report contains sensitive information
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concerning Turner’s crimes, pre-sentencing statements and statements by his family
that could jeopardize the safety of petitioner and of his family. The motion is granted.
IT IS THEREFORE ORDERED that Mario D. Valencia’s motion to withdraw as
counsel (ECF No. 31) is GRANTED. Mario D. Valencia is released as counsel.
IT IS FURTHER ORDERED that Christopher R. Oram, a CJA panel attorney for
the United States District Court, District of Nevada, will represent petitioner in all future
proceedings in this court relating to this matter (including subsequent actions) and
appeals therefrom, pursuant to 18 U.S.C. § 3006A (a)(2)(B), until allowed to withdraw.
Mr. Oram’s contact information appears below:
Christopher R. Oram
520 South 4th Street
2nd Floor
Las Vegas, NV 89101
702-598-1471
[e-mail]
IT IS FURTHER ORDERED that CJA counsel Christopher R. Oram enter a notice
of appearance within 20 days of the date of this order.
IT IS FURTHER ORDERED that the scheduling order dated April 23, 2021, at ECF
No. 23 is VACATED.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time to file an
amended petition (ECF No. 28) is DENIED as moot.
IT IS FURTHER ORDERED that respondents’ motion for leave to file exhibit in
camera and under seal (ECF No. 29) is GRANTED.
IT IS FURTHER ORDERED that CJA counsel for petitioner must meet with
petitioner as soon as reasonably possible to: (a) review the procedures applicable in
cases under 28 U.S.C. § 2254; (b) discuss and explore with petitioner, as fully as possible,
the potential grounds for habeas corpus relief in petitioner's case; and (c) advise petitioner
that all possible grounds for habeas corpus relief must be raised at this time and that the
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failure to do so will likely result in the omitted grounds being barred from future review
under the rules regarding abuse of writ.
IT IS FURTHER ORDERED that counsel for petitioner file an amended petition for
writ of habeas corpus that includes all known grounds for relief (both exhausted and
unexhausted) within 90 days.
IT IS FURTHER ORDERED that respondents file a response to the petition within
90 days of service of the petition. Petitioner will then have 45 days from service of the
answer, motion to dismiss, or other response to file a reply or opposition. Any other
motions will be subject to the normal briefing schedule under the local rules.
Any response to the petition must comport with Habeas Rule 5. Additionally:
1. Any procedural defenses raised by respondents in this case must 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

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

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to potential waiver.

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2. Respondents must not file a response in this case that consolidates their
procedural defenses, if any, with their response on the merits, except under 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 must do so within the single motion to dismiss, not in the answer, and (b)

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they must specifically direct their argument to the standard for dismissal under §

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2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005).

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In short, no procedural defenses, including exhaustion, should be included with

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the merits in an answer. All procedural defenses, including exhaustion, must
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instead be raised by motion to dismiss.
3. In any answer filed on the merits, respondents must specifically cite to and address
the applicable state-court written decision and state-court record materials, if any,
regarding each claim within the response as to that claim; and
4. Respondents must file a set of state court exhibits relevant to the response filed

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to the petition. Those exhibits must be filed chronologically and be accompanied

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by a separate index of exhibits identifying the exhibits by number. The CM/ECF

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attachments that are filed must be identified by the number or numbers of the

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exhibits in the attachment. The purpose of this provision is to allow the court and
any reviewing court thereafter to quickly determine from the face of the electronic
docket sheet which numbered exhibits are filed in which attachments.
Respondents must send a hard copy of all pleadings and indices of exhibits

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ONLY filed for this case to the Clerk of Court, 400 S. Virginia St., Reno, NV,

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89501, directed to the attention of “Staff Attorney” on the outside of the mailing

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address label.

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DATED: 7 September 2021.

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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