Perez v. Baker et al

Filing 10

ORDER that counsel for petitioner must meet with petitioner as soon as reasonably possible; amended petition due by 4/8/2018; respondents shall have 45 days from service of amended petition to file an answer/response; petitioner shall have 45 days from service of the answer, motion to dismiss, or other response to file a reply or opposition; any additional state court record exhibits filed herein; the parties SHALL SEND courtesy copies of all exhibits in this case to Reno Staff Attorney. See Order for further details and instructions. Signed by Judge Howard D. McKibben on 1/8/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 NOE ORTEGA PEREZ, 10 Case No. 3:17-cv-00538-HDM-VPC Petitioner, ORDER v. 11 BAKER, et al., 12 Respondents. 13 14 Before the court is petitioner Noe Ortega Perez’s petition for writ of habeas 15 corpus pursuant to 28 U.S.C. § 2254. On Decem ber 6, 2017, this court granted 16 petitioner’s motion for counsel and appointed the Federal Public Def ender to represent 17 petitioner in this action (ECF No. 5). On January 5, 2018, Megan Hoffman of the 18 Federal Public Defender’s Office appeared on behalf of petitioner (ECF No. 9). The 19 court now sets a schedule for further proceedings in this action. 20 21 22 IT IS THEREFORE ORDERED that counsel for petitioner shall meet with petitioner as soon as reasonably possible, if counsel has not already done so, to: (a) 23 review the procedures applicable in cases under 28 U.S.C. § 2254; (b) discuss and 24 explore with petitioner, as fully as possible, the potential grounds for habeas corpus 25 relief in petitioner’s case; and (c) advise petitioner that all possible grounds for habeas 26 27 corpus relief must be raised at this time in this action and that the failure to do so will likely result in any omitted grounds being barred from future review. 28 1 1 2 3 IT IS FURTHER ORDERED that petitioner shall have ninety (90) days from the date of this order to FILE AND SERVE on respondents an am ended petition for writ of habeas corpus, which shall include all known grounds for relief (both exhausted and 4 5 6 unexhausted). IT IS FURTHER ORDERED that respondents shall have forty-five (45) days 7 after service of an amended petition within which to answer, or otherwise respond to, 8 the amended petition. If petitioner does not file an amended petition, respondents shall 9 have forty-five (45) days from the date on which the amended petition is due within 10 which to answer, or otherwise respond to, petitioner’s original petition. Any response 11 filed shall comply with the remaining provisions below, which are entered pursuant to 12 13 Habeas Rule 5. 14 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 15 in this case shall be raised together in a single consolidated motion to dismiss. In other 16 words, the court does not wish to address any procedural defenses raised herein either 17 in seriatum fashion in multiple successive motions to dismiss or embedded in the 18 answer. Procedural defenses omitted from such motion to dismiss will be subject to 19 potential waiver. Respondents shall not file a response in this case that consolidates 20 21 their procedural defenses, if any, with their response on the merits, except pursuant to 22 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 23 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 24 do so within the single motion to dismiss not in the answer; and (b) they shall 25 26 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no 27 28 procedural defenses, including exhaustion, shall be included with the merits in an 2 1 2 3 answer. All procedural defenses, including exhaustion, instead must be raised by motion to dismiss. IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 4 5 6 7 shall 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. IT IS FURTHER ORDERED that petitioner shall have forty-five (45) days from 8 service of the answer, motion to dismiss, or other response to file a reply or opposition, 9 with any other requests for relief by respondents by motion otherwise being subject to 10 the normal briefing schedule under the local rules. 11 IT IS FURTHER ORDERED that any state court record exhibits filed by the 12 13 parties herein shall be filed with an index of exhibits identifying the exhibits by number 14 or letter. The CM/ECF attachments that are filed shall further be identified by the 15 number or letter of the exhibit in the attachment. 16 IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all 17 exhibits to the Reno Division of this court. Courtesy copies shall be mailed to the Clerk 18 of Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff 19 Attorney” on the outside of the mailing address label. Additionally, in the future, all 20 21 22 23 parties shall provide courtesy copies of any additional exhibits submitted to the court in this case, in the manner described above. DATED: January 8, 2018. 24 25 HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE 26 27 28 3

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