Fields v. Dzurenda

Filing 6

ORDER that petitioners application to proceed in forma pauperis ECF No. 5 is denied as moot; Clerk directed to file the petition for a writ of habeas corpus ECF No. 1 -1, add AG, as counsel for respondents and electronically serve upon res pondents a copy of the petition and this order (e-served on 05/03/2018); petitioner to submit a new first page of the petition by 05/16/2018; respondents will have until 08/01/2018 to answer or otherwise respond to the petition; any pro cedural defenses raised by respondents to be raised together in a single consolidated motion to dismiss; petitioner will have (45) days from the date on which the answer is served to file a reply; any exhibits filed by the parties must be filed with a separate index of exhibits identifying the exhibits by number; hard copy of all exhibits must be forwarded to the staff attorneys in Reno. Signed by Judge Miranda M. Du on 5/2/2018. (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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***

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KEVIN FIELDS,
Petitioner,

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Case No. 3:17-cv-00691-MMD-VPC
ORDER

v.
JAMES DZURENDA, et al.,

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Respondents.

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Petitioner Kevin Fields has submitted a pro se 28 U.S.C. § 2254 petition for a writ

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of habeas corpus. He has paid the filing fee; therefore, his application to proceed in forma

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pauperis is denied as moot. The Court has reviewed the petition pursuant to Habeas

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Rule 4, and it will be docketed and served on respondents.

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A petition for federal habeas corpus should include all claims for relief of which

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petitioner is aware. If petitioner fails to include such a claim in his petition, he may be

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forever barred from seeking federal habeas relief upon that claim.

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§2254(b) (successive petitions). If petitioner is aware of any claim not included in his

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petition, he should notify the court of that as soon as possible, perhaps by means of a

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motion to amend his petition to add the claim.

See 28 U.S.C.

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Finally, a habeas petitioner must name his custodian—usually the warden where

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the inmate is housed—as a respondent in the action. Rule 2(a) of the Rules Governing

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§ 2254. The petitioner’s failure to name his custodian as a respondent deprives the

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federal court of personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir.

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2003). Accordingly, within fourteen (14) days of the date of this order petitioner must

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submit a new caption page only (first page of the petition) that names his custodian as a

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respondent.
It is therefore ordered that petitioner’s application to proceed in forma pauperis

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(ECF No. 5) is denied as moot.

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It is further ordered that the Clerk file and electronically serve the petition (ECF No.
1-1) on the respondents.

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It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney General,
as counsel for respondents.

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It is further ordered that, within fourteen (14) days of the date of this order,

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petitioner must submit a new first page of the petition that includes his custodian as a

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respondent.

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It is further ordered that respondents must file a response to the petition, including

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potentially by motion to dismiss, within ninety (90) days of service of the petition, with any

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requests for relief by petitioner by motion otherwise being subject to the normal briefing

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schedule under the local rules. Any response filed must comply with the remaining

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provisions below, which are entered pursuant to Habeas Rule 5.

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It is further ordered that any procedural defenses raised by respondents in this

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case be raised together in a single consolidated motion to dismiss. In other words, the

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Court does not wish to address any procedural defenses raised herein either in seriatum

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fashion in multiple successive motions to dismiss or embedded in the answer. Procedural

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defenses omitted from such motion to dismiss will be subject to potential waiver.

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Respondents must not file a response in this case that consolidates their procedural

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defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. §

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2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek

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dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within the single

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motion to dismiss not in the answer; and (b) they must specifically direct their argument

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to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d

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614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may

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be included with the merits in an answer. All procedural defenses, including exhaustion,

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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 petitioner has forty-five (45) days from service of the

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answer, motion to dismiss, or other response to file a reply or opposition, with any other

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requests for relief by respondents by motion otherwise being subject to the normal briefing

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schedule under the local rules.

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It is further ordered that any additional state court record exhibits filed herein by

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either petitioner or respondents be filed with a separate index of exhibits identifying the

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exhibits by number. The CM/ECF attachments that are filed further must be identified by

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the number of the exhibit in the attachment.

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It is further ordered that the parties send courtesy copies of all exhibits in this case

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to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention of

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“Staff Attorney” on the outside of the mailing address label. Additionally, in the future, all

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parties must provide courtesy copies of any additional exhibits submitted to the Court in

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this case, in the manner described above.

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DATED THIS 2nd day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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