Cardenas-Ornelas v. Baker et al

Filing 10

ORDER that the provisional appointment of the FPD is withdrawn; David K. Neidert is appointed as counsel for petitioner; that petitioner's motion for leave to file a first amended petition ECF No. 7 is granted nunc pro tunc to 11/28/2017; Clerk directed to file the first amended petition and exhibits (see ECF No. 7 for exhibits); petitioner's motion for a scheduling order ECF No. 8 is granted; petitioner will have until 04/03/2017 to file a secon d amended petition and/or seek other appropriate relief; respondents will not be required to respond to the first amended petition at this time, but filed a response to the petition, as amended, within (60) days of service; petitioner may file a repl y within (30) days of service; the hard copy of any exhibits filed by either counsel must be delivered, for this case, to the Reno Clerk's Office; the Clerk will provide Mr. Neidert, upon his request, with a single set of electronic co pies of all prior filings; Clerk directed to send a copy of this order to the petitioner at the last institutional address (mailed to P at LCC on 12/04/2017). Signed by Judge Miranda M. Du on 12/4/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LUIS CARDENAS-ORNELAS,

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Case No. 3:17-cv-00461-MMD-VPC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court following upon

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the Federal Public Defender’s entry of a notice of conflict (ECF No. 9) together with

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petitioner’s motion for leave to file a first amended petition (ECF No. 7) and motion for a

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scheduling order (ECF No. 8).

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While the Federal Public Defender is entering a notice of conflict, counsel is

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seeking: (a) leave to file a first amended petition preserving then-known claims by a

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potential expiration date of the federal limitation period on November 28, 2017; and (b)

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entry of a scheduling order allowing conflict-free counsel an opportunity to file a second

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amended petition after petitioner’s newly-appointed federal habeas counsel has had a full

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opportunity to independently investigate all potential claims. The Court has authorized

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such a “two-step” procedure in prior cases in situations where time potentially remains in

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the federal limitation period at the time of the appointment but that period may expire prior

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to a full opportunity for investigation by counsel. See, e.g., McMahon v. Neven, No. 2:14-

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cv-00076-APG-CWH, ECF No. 29 (D. Nev., May 29, 2014) (approving and explaining the

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Court's rationale in allowing a bifurcated amendment procedure in habeas cases where

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the limitation period potentially may expire before federal habeas counsel would be able

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to conduct a complete investigation). Such a two-step procedure would appear to be

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additionally warranted in this circumstance given the conflict situation.

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It is therefore ordered that the provisional appointment of the Federal Public
Defender is withdrawn.

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It is further ordered that David K. Neidert, Esq., 316 California Ave. #420, Reno,

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NV 89509, 775-742-2081, is appointed as counsel for petitioner pursuant to 18 U.S.C. §

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3006A(a)(2)(B). Counsel will represent petitioner in all federal proceedings related to this

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matter, including any appeals or certiorari proceedings, unless allowed to withdraw.

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It is further ordered that petitioner’s motion for leave to file a first amended petition

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(ECF No. 7) is granted nunc pro tunc to November 28, 2017, and that the Clerk of Court

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file the first amended petition and exhibits. The exhibits may be left docketed under ECF

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No. 7 if more convenient to the Clerk.
It is further ordered that petitioner’s motion for a scheduling order (ECF No. 8) is

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granted consistent with the remaining provisions of this order.

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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 a second amended petition

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and/or seek other appropriate relief. Neither the foregoing deadline nor any extension

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

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limitation period and/or of a basis for tolling during the time period established. Petitioner

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at all times remains responsible for calculating the running of the federal limitation period

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and timely asserting claims, without regard to any deadlines established or extensions

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granted 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: (a) respondents will not be required to respond to the first

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amended petition at this time, but that (b) respondents must file a response to the petition,

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as then amended, either within sixty (60) days of service of a second amended petition if

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filed or instead within sixty (60) days of the final expiration of the time to do so if petitioner

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does not file a second amended petition; and (c) petitioner may file a reply within thirty

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(30) days of service. 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, will be governed instead by the local rules.

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It is further 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 must 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 must

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do so within the single motion to dismiss not in the answer; and (b) they must 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, will 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 the hard copy of any exhibits filed by either counsel must
be delivered — for this case — to the Reno Clerk's Office.

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Following entry of Mr. Neidert as counsel of record on the docket, the Clerk will

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provide counsel, upon his request, with a single set of electronic copies of all prior filings
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herein in a manner consistent with the Clerk’s current practice, such as regeneration of

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notices of electronic filing.

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The Clerk further will send a copy of this order to the petitioner in proper person at

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the last institutional address in the record and reflect said transmittal either via the notice

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of electronic filing or on the docket, in a manner consistent with the Clerk’s current

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practice.

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DATED THIS 4th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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