Smith v. Baker et al

Filing 14

ORDER that ECF No. 13 motion to withdraw FPD as counsel for petitioner is granted; Mary Lou Wilson, Esq. is appointed as counsel for petitioner; amended petition due by 6/8/2018; respondents to file a response/answer to the amended pe tition within 60 days of service; petitioner may file a reply within 30 days from service of the answer; any additional state court record exhibits filed herein; Clerk directed to provide counsel with a single set of electronic copies of all prior fi lings upon request; Clerk directed to send petitioner a copy of this order at the last institutional address in the record (mailed to petitioner at LCC on 2/8/2018). See Order for further details and instructions. Signed by Judge Miranda M. Du on 2/8/2018.(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 SHAYLON SMITH, 10 11 12 Case No. 3:17-cv-00579-MMD-VPC Petitioner, ORDER v. WARDEN BAKER, et al., Respondents. 13 14 15 Following upon the Federal Public Defender’s notice of conflict, which the Clerk 16 has redocketed as a motion to withdraw as counsel (ECF No. 13), it is ordered that the 17 notice redocketed as a motion to withdraw as counsel (ECF No. 13) is granted and that 18 the provisional appointment of the Federal Public Defender as counsel for the petitioner 19 is withdrawn. 20 It is further ordered that Mary Lou Wilson, Esq., Law Office of Mary Lou Wilson, 21 2064 Regent Street, Reno, NV 89509, (775) 771-8620, is appointed as counsel for 22 petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent petitioner in all 23 federal proceedings related to this matter, including any appeals or certiorari proceedings, 24 unless allowed to withdraw. 25 It is further ordered that petitioner will have until up to and including one hundred 26 twenty (120) days from entry of this order within which to file an amended petition and/or 27 seek other appropriate relief. Neither the foregoing deadline nor any extension thereof 28 signifies or will signify any implied finding as to the expiration of the federal limitation 1 period and/or of a basis for tolling during the time period established. Petitioner at all times 2 remains responsible for calculating the running of the federal limitation period and timely 3 asserting claims, without regard to any deadlines established or extensions granted 4 herein. That is, by setting a deadline to amend the petition and/or by granting any 5 extension thereof, the Court makes no finding or representation that the petition, any 6 amendments thereto, and/or any claims contained therein are not subject to dismissal as 7 untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 8 It is further ordered that respondents must file a response to the amended petition, 9 including potentially by motion to dismiss, within sixty (60) days of service of an amended 10 petition and that petitioner may file a reply thereto within thirty (30) days of service of the 11 answer. The response and reply time to any motion filed by either party, including a 12 motion filed in lieu of a pleading, will be governed instead by Local Rule LR 7-2(b). 13 It is further ordered that any procedural defenses raised by respondents to the 14 counseled amended petition must be raised together in a single consolidated motion to 15 dismiss. In other words, the Court does not wish to address any procedural defenses 16 raised herein either in seriatum fashion in multiple successive motions to dismiss or 17 embedded in the answer. Procedural defenses omitted from such motion to dismiss will 18 be subject to potential waiver. Respondents must not file a response in this case that 19 consolidates their procedural defenses, if any, with their response on the merits, except 20 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 21 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 22 do so within the single motion to dismiss not in the answer; and (b) they shall specifically 23 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett 24 v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 25 including exhaustion, shall be included with the merits in an answer. All procedural 26 defenses, including exhaustion, instead must be raised by motion to dismiss. 27 /// 28 /// 2 1 It is further ordered that, in any answer filed on the merits, respondents must 2 specifically cite to and address the applicable state court written decision and state court 3 record materials, if any, regarding each claim within the response as to that claim. 4 5 It is further ordered that the hard copy of any record exhibits filed shall be sent — for this case — to the Reno Clerk’s Office. 6 Following entry of Ms. Wilson as counsel of record on the docket, the Clerk of 7 Court will provide counsel, upon her request, with a single set of electronic copies of all 8 prior filings herein in a manner consistent with the Clerk’s current practice, such as 9 regeneration of notices of electronic filing. 10 The Clerk further will send a copy of this order to the petitioner in proper person at 11 the last institutional address in the record and reflect said transmittal either via the notice 12 of electronic filing or on the docket, in a manner consistent with the Clerk’s current 13 practice. 14 DATED THIS 8th day of February 2018. 15 16 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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