Hermanson v. Baca et al

Filing 12

ORDER that FPD through Jonathan M Kirshbaum is appointed as counsel for petitioner; amended petition due by 5/25/2018; Respondents' answer/response due within 60 days of service of an amended petition; petitioner may reply within < b>30 days from service of answer/response; any additional state court record exhibits filed herein; the parties must send hard copies of all exhibits in this case to Reno Clerk's Office. See Order for further details and instructions. Signed by Judge Howard D. McKibben on 1/25/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 JAMES E. HERMANSON, 9 10 Petitioner, vs. 3:17-cv-00721-HDM-VPC ORDER 11 12 ISIDRO BACA, et al., 13 Respondents. 14 15 Following upon the entry of appearance (ECF No. 11) by the Federal Public Defender, 16 IT IS ORDERED that the Federal Public Defender, through Jonathan M. Kirshbaum, 17 Esq.,is appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel 18 will represent petitioner in all federal proceedings related to this matter, including any appeals 19 or certiorari proceedings, unless allowed to withdraw. 20 IT FURTHER IS ORDERED that petitioner shall have until up to and including one 21 hundred twenty (120) days from entry of this order within which to file an amended petition 22 and/or seek other appropriate relief. Neither the foregoing deadline nor any extension thereof 23 signifies or will signify any implied finding as to the expiration of the federal limitation period 24 and/or of a basis for tolling during the time period established. Petitioner at all times remains 25 responsible for calculating the running of the federal limitation period and timely asserting 26 claims, without regard to any deadlines established or extensions granted herein. That is, by 27 setting a deadline to amend the petition and/or by granting any extension thereof, the Court 28 makes no finding or representation that the petition, any amendments thereto, and/or any 1 claims contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 2 F.3d 1225, 1235 (9th Cir. 2013). 3 IT FURTHER IS ORDERED that respondents shall file a response to the amended 4 petition, including potentially by motion to dismiss, within sixty (60) days of service of an 5 amended petition and that petitioner may file a reply thereto within thirty (30) days of service 6 of the answer. The response and reply time to any motion filed by either party, including a 7 motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b). 8 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to 9 the counseled amended petition shall be raised together in a single consolidated motion to 10 dismiss. In other words, the Court does not wish to address any procedural defenses raised 11 herein either in seriatum fashion in multiple successive motions to dismiss or embedded in 12 the answer. Procedural defenses omitted from such motion to dismiss will be subject to 13 potential waiver. Respondents shall not file a response in this case that consolidates their 14 procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. 15 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek 16 dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single 17 motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the 18 standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 19 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, shall be 20 included with the merits in an answer. All procedural defenses, including exhaustion, instead 21 must be raised by motion to dismiss. 22 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 23 specifically cite to and address the applicable state court written decision and state court 24 record materials, if any, regarding each claim within the response as to that claim. 25 IT FURTHER IS ORDERED that any state court record and related exhibits filed herein 26 by either petitioner or respondents shall be filed with a separate index of exhibits identifying 27 the exhibits by number. The CM/ECF attachments that are filed further shall be identified by 28 the number or numbers of the exhibits in the attachment. If the exhibits filed will span more -2- 1 than one ECF Number in the record, the first document under each successive ECF Number 2 shall be either another copy of the index, a volume cover page, or some other document 3 serving as a filler, so that each exhibit under the ECF Number thereafter will be listed under 4 an attachment number (i.e., Attachment 1, 2, etc.). 5 6 7 IT FURTHER IS ORDERED that the hard copy of any exhibits filed by either counsel shall be delivered – for this case – to the Reno Clerk's Office. DATED: January 25, 2018. 8 9 10 11 __________________________________ HOWARD D. MCKIBBEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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