Hermanson v. Baca et al

Filing 20

ORDER that petitioner's motion for leave to file second amended petition ECF No. 19 and motion for leave to file Exhibits 52 and 53 under to seal ECF No. 18 are GRANTED; petitioner shall have up to and including 7/9/2018 to file second amended petition; respondents not required to respond to the first amended petition. Signed by Judge Howard D. McKibben on 3/19/2018. (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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JAMES E. HERMANSON,

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Petitioner,
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v.
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ISIDRO BACA, et al.,
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Respondents.
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_________________________________ )

3:17-cv-00721-HDM-VPC
ORDER

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Before the court are petitioner’s motions for leave to file (1)

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Exhibits 52 and 53 under seal (ECF No. 18) and (2) a second amended

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petition (ECF No. 19).

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On January 25, 2018, the court granted petitioner leave to file

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an amended petition no later than May 25, 2018.

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petitioner filed a first amended petition along with a motion to file

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a second amended petition.

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necessarily agree that is the deadline, he has filed a first amended

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petition out of an abundance of caution and seeks leave to file a

On March 15, 2018,

In his motion, petitioner does not

second amended petition after newly appointed counsel’s review and

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investigation is complete.

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Petitioner thus seeks to employ a “two-step” procedure whereby

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he: (a) files an initial counseled amended petition preserving all

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then-known claims free of possible relation-back issues; and (b)

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thereafter

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petitioner’s newly appointed federal habeas counsel has had a full

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opportunity to independently investigate all potential claims.

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court expressly has authorized such a “two-step” procedure in prior

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cases,

potentially

and it

does

so

files

a

here.

second

See,

e.g.,

amended

petition

McMahon

v.

after

The

Neven, No.

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2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev., May 29, 2014)(approving

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and

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amendment procedure in habeas cases where the limitation period

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potentially may expire before federal habeas counsel would be able to

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conduct a complete investigation).

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explaining

the

court’s

rationale

in

allowing

a

bifurcated

IT IS THEREFORE ORDERED that petitioner’s motion (ECF No. 19) for
leave to file a second amended petition is GRANTED.

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IT IS FURTHER ORDERED that petitioner shall have up to and

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including July 9, 2018, within which to file a second amended petition

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and/or seek other appropriate relief.

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nor any extension thereof signifies or will signify any implied

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finding as to the expiration of the federal limitation period and/or

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of a basis for tolling during the time period established. Petitioner

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at all times remains responsible for calculating the running of the

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federal limitation period and timely asserting claims, without regard

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to any deadlines established or extensions granted herein.

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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

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the petition, any amendments thereto, and/or any claims contained
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Neither the foregoing deadline

That is,

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therein are not subject to dismissal as untimely. See Sossa v. Diaz,

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729 F.3d 1225, 1235 (9th Cir. 2013).

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IT IS FURTHER ORDERED that: (a) respondents shall not be required

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to respond to the first amended petition at this time, but that (b)

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respondents shall file a response to the petition, as then amended,

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either within sixty (60) days of service of a second amended petition,

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if filed, or instead within sixty (60) days of the final expiration

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of the time to do so if petitioner does not file a second amended

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petition; and (c) petitioner may file a reply within thirty (30) days

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of service. The response and reply time to any motion filed by either

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party, including a motion filed in lieu of a pleading, shall be

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governed instead by the local rules.

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IT IS FURTHER ORDERED that petitioner’s motion for leave to file

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Exhibits 52 and 53 under seal (ECF No. 18) is GRANTED. The court

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finds, in accordance with the requirements of Kamakana v. City and

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County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), that a compelling

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need to protect the privacy of petitioner with regard to the sealed

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exhibits, which comprise his

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outweighs the public interest in open access to court records.

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medical and psychological records,

IT IS SO ORDERED.

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DATED: This 19th day of March, 2018.
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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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