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ORDER that the provisional appointment of the FPD is withdrawn; David K. Neidert is appointed as counsel for petitioner; that petitioner's motion for leave to file a first amended petition ECF No. 7 is granted nunc pro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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 LUIS CARDENAS-ORNELAS, 11 12 13 14 Case No. 3:17-cv-00461-MMD-VPC Petitioner, ORDER v. RENEE BAKER, et al., Respondents. 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court following upon 16 the Federal Public Defender’s entry of a notice of conflict (ECF No. 9) together with 17 petitioner’s motion for leave to file a first amended petition (ECF No. 7) and motion for a 18 scheduling order (ECF No. 8). 19 While the Federal Public Defender is entering a notice of conflict, counsel is 20 seeking: (a) leave to file a first amended petition preserving then-known claims by a 21 potential expiration date of the federal limitation period on November 28, 2017; and (b) 22 entry of a scheduling order allowing conflict-free counsel an opportunity to file a second 23 amended petition after petitioner’s newly-appointed federal habeas counsel has had a full 24 opportunity to independently investigate all potential claims. The Court has authorized 25 such a “two-step” procedure in prior cases in situations where time potentially remains in 26 the federal limitation period at the time of the appointment but that period may expire prior 27 to a full opportunity for investigation by counsel. See, e.g., McMahon v. Neven, No. 2:14- 28 cv-00076-APG-CWH, ECF No. 29 (D. Nev., May 29, 2014) (approving and explaining the 1 Court's rationale in allowing a bifurcated amendment procedure in habeas cases where 2 the limitation period potentially may expire before federal habeas counsel would be able 3 to conduct a complete investigation). Such a two-step procedure would appear to be 4 additionally warranted in this circumstance given the conflict situation. 5 6 It is therefore ordered that the provisional appointment of the Federal Public Defender is withdrawn. 7 It is further ordered that David K. Neidert, Esq., 316 California Ave. #420, Reno, 8 NV 89509, 775-742-2081, is appointed as counsel for petitioner pursuant to 18 U.S.C. § 9 3006A(a)(2)(B). Counsel will represent petitioner in all federal proceedings related to this 10 matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 11 It is further ordered that petitioner’s motion for leave to file a first amended petition 12 (ECF No. 7) is granted nunc pro tunc to November 28, 2017, and that the Clerk of Court 13 file the first amended petition and exhibits. The exhibits may be left docketed under ECF 14 No. 7 if more convenient to the Clerk. It is further ordered that petitioner’s motion for a scheduling order (ECF No. 8) is 15 16 granted consistent with the remaining provisions of this order. 17 It is further ordered that petitioner will have until up to and including one hundred 18 twenty (120) days from entry of this order within which to file a second amended petition 19 and/or seek other appropriate relief. Neither the foregoing deadline nor any extension 20 thereof signifies or will signify any implied finding as to the expiration of the federal 21 limitation period and/or of a basis for tolling during the time period established. Petitioner 22 at all times remains responsible for calculating the running of the federal limitation period 23 and timely asserting claims, without regard to any deadlines established or extensions 24 granted herein. That is, by setting a deadline to amend the petition and/or by granting any 25 extension thereof, the Court makes no finding or representation that the petition, any 26 amendments thereto, and/or any claims contained therein are not subject to dismissal as 27 untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 28 /// 2 1 It is further ordered that: (a) respondents will not be required to respond to the first 2 amended petition at this time, but that (b) respondents must file a response to the petition, 3 as then amended, either within sixty (60) days of service of a second amended petition if 4 filed or instead within sixty (60) days of the final expiration of the time to do so if petitioner 5 does not file a second amended petition; and (c) petitioner may file a reply within thirty 6 (30) days of service. The response and reply time to any motion filed by either party, 7 including a motion filed in lieu of a pleading, will be governed instead by the local rules. 8 It is further ordered that any procedural defenses raised by respondents to the 9 counseled amended petition must be raised together in a single consolidated motion to 10 dismiss. In other words, the Court does not wish to address any procedural defenses 11 raised herein either in seriatum fashion in multiple successive motions to dismiss or 12 embedded in the answer. Procedural defenses omitted from such motion to dismiss will 13 be subject to potential waiver. Respondents must not file a response in this case that 14 consolidates their procedural defenses, if any, with their response on the merits, except 15 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 16 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must 17 do so within the single motion to dismiss not in the answer; and (b) they must specifically 18 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett 19 v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 20 including exhaustion, will be included with the merits in an answer. All procedural 21 defenses, including exhaustion, instead must be raised by motion to dismiss. 22 It is further ordered that, in any answer filed on the merits, respondents must 23 specifically cite to and address the applicable state court written decision and state court 24 record materials, if any, regarding each claim within the response as to that claim. 25 26 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. 27 Following entry of Mr. Neidert as counsel of record on the docket, the Clerk will 28 provide counsel, upon his request, with a single set of electronic copies of all prior filings 3 1 herein in a manner consistent with the Clerk’s current practice, such as regeneration of 2 notices of electronic filing. 3 The Clerk further will send a copy of this order to the petitioner in proper person at 4 the last institutional address in the record and reflect said transmittal either via the notice 5 of electronic filing or on the docket, in a manner consistent with the Clerk’s current 6 practice. 7 DATED THIS 4th day of December 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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