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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SHAYLON SMITH,

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Case No. 3:17-cv-00579-MMD-VPC
Petitioner,

ORDER

v.
WARDEN BAKER, et al.,
Respondents.

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Following upon the Federal Public Defender’s notice of conflict, which the Clerk

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has redocketed as a motion to withdraw as counsel (ECF No. 13), it is ordered that the

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notice redocketed as a motion to withdraw as counsel (ECF No. 13) is granted and that

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the provisional appointment of the Federal Public Defender as counsel for the petitioner

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is withdrawn.

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It is further ordered that Mary Lou Wilson, Esq., Law Office of Mary Lou Wilson,

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2064 Regent Street, Reno, NV 89509, [phone], is appointed as counsel for

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petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent petitioner in all

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federal proceedings related to this matter, including any appeals or certiorari proceedings,

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unless allowed to withdraw.

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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 an amended petition and/or

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seek other appropriate relief. Neither the foregoing deadline nor any extension thereof

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

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period and/or of a basis for tolling during the time period established. Petitioner at all times

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remains responsible for calculating the running of the federal limitation period and timely

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asserting claims, without regard to any deadlines established or extensions granted

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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 respondents must file a response to the amended petition,

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including potentially by motion to dismiss, within sixty (60) days of service of an amended

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petition and that petitioner may file a reply thereto within thirty (30) days of service of the

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answer. The response and reply time to any motion filed by either party, including a

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

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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 shall

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do so within the single motion to dismiss not in the answer; and (b) they shall 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, shall 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 record exhibits filed shall be sent —
for this case — to the Reno Clerk’s Office.

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Following entry of Ms. Wilson as counsel of record on the docket, the Clerk of

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Court will provide counsel, upon her request, with a single set of electronic copies of all

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prior filings herein in a manner consistent with the Clerk’s current practice, such as

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regeneration of 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 8th day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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