Hernandez v. Warden Legrand et al

Filing 11

ORDER appointing FPD S. Alex Spellman as counsel for Petitioner. Amended Petition due within 120 days. Respondents' response due within 60 days thereafter. Petitioner's reply due within 30 days of response. Any exhibits to be filed with separate index. Hard copies of any exhibits to be forwarded, for this case, to the Reno Clerk's Office. Signed by Judge Miranda M. Du on 1/26/2018. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSEPH A. HERNANDEZ,

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Case No. 3:17-cv-00697-MMD-WGC
Petitioner,

ORDER

v.
LeGRAND, et al.,
Respondents.

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Following upon the entry of appearance (ECF No. 10) by the Federal Public

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Defender, it is ordered that the Federal Public Defender, through S. Alex Spelman, Esq.,

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is appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel

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will represent petitioner in all federal proceedings related to this matter, including any

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appeals or certiorari proceedings, unless allowed to withdraw.

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It further is 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 further is 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 within thirty (30) days of service of an answer.

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

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

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

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

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

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by the number or numbers of the exhibits in the attachment. If the exhibits filed will span
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more than one ECF Number in the record, the first document under each successive ECF

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Number must be either another copy of the index, a volume cover page, or some other

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document serving as a filler, so that each exhibit under the ECF Number thereafter will

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be listed under an attachment number (i.e., Attachment 1, 2, etc.).

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It further is ordered that the hard copy of any exhibits filed by either counsel must
be delivered — for this case — to the Reno Clerk's Office.
DATED THIS 26th day of January 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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