McCaskill v. Baca et al

Filing 20

ORDER directing Respondents to file a response within 60 days to ECF No. 19 Amended Petition. Petitioner to reply within 30 days thereafter. Paper copies of any electronically filed exhibits need not be provided to chambers or to the staff attorney, unless later directed by the Court. Signed by Judge Robert C. Jones on 9/9/2019. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LEONARD MCCASKILL,

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Petitioner,

Case No. 3:17-cv-00305-RCJ-WGC
ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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Petitioner has filed an amended petition (ECF No. 19). The court has reviewed it under

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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court

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will direct respondents to file a response.

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

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petition (ECF No. 19), including potentially by motion to dismiss, within sixty (60) days from the

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date of entry of this order. Petitioner may file a reply within thirty (30) days from the date of

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filing and service of an answer. The response and reply time to any motion filed by either party,

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including a motion filed in lieu of a pleading, shall be governed instead by LR 7-2(b).

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IT FURTHER IS ORDERED that 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 herein

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either serially in multiple successive motions to dismiss or embedded in the answer. Procedural
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defenses omitted from such motion to dismiss will be subject to potential forfeiture. Respondents

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shall not file a response in this case that consolidates their procedural defenses, if any, with their

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response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims

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clearly lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2):

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(a) they shall do so within the single motion to dismiss not in the answer; and (b) they shall

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specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in

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Cassett 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 defenses,

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including exhaustion, instead must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that that, in any answer filed on the merits, respondents

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shall 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 FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies

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of any electronically filed exhibits need not be provided to chambers or to the staff attorney,

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unless later directed by the court.

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DATED: September 9, 2019.

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______________________________
ROBERT C. JONES
United States District Judge

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