Hermanson v. Baca et al

Filing 52

ORDER - Petitioner's motion to reopen this action (ECF No. 50 ) is GRANTED. Clerk of Court will reopen this action. Respondents will have 60 days to answer, or otherwise respond to, the amended petition for writ of habeas corpus i n this case (ECF No. 21 ) (response/answer due by 4/11/2022). Petitioner will have 60 days following service of the answer to file and serve a reply brief. See attached PDF Order for additional specifications. Signed by Judge Howard D. McKibben on 2/10/2022. (Copies have been distributed pursuant to the NEF - HKL)

Case 3:17-cv-00721-HDM-CLB Document 52 Filed 02/10/22 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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* * *

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JAMES E. HERMANSON,

Case No. 3:17-cv-00721-HDM-CBC
Petitioner,

v.

ORDER

ISIDRO BACA, et al.,
Respondents.

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On August 8, 2019, the Court administratively closed this

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action while Petitioner exhausted his unexhausted claims in state

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court. (ECF No. 45.) Petitioner has completed his state court

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proceedings

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proceedings. (ECF No. 50.) Respondents did not respond to this

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motion and the deadline to do so has expired.

and

now

moves

to

re-open

these

federal

habeas

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IT IS THEREFORE ORDERED:

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1. Petitioner’s motion to reopen this action (ECF No. 50) is

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GRANTED.
2. As the stay is lifted by this order, the Clerk of Court
will reopen this action.

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3. Respondents will have 60 days to answer, or otherwise

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respond to, the amended petition for writ of habeas corpus

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in this case.

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4. Petitioner will have 60 days following service of the

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answer to file and serve a reply brief. If a dispositive

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motion is filed, the parties will brief the motion in

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Case 3:17-cv-00721-HDM-CLB Document 52 Filed 02/10/22 Page 2 of 3

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accordance with Rules 7-2 and 7-3 of the Local Rules of

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Practice.

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5. Any procedural defenses Respondents raise to the second

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amended

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consolidated

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omitted from such motion to dismiss will be subject to

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potential waiver. Respondents will not file a response in

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this case that consolidates their procedural defenses, if

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any, with their response on the merits, except pursuant to

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28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly

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lacking

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unexhausted claims under § 2254(b)(2), they must do so

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within the single motion to dismiss, not in the answer,

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and specifically direct their argument to the standard for

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dismissal

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Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short,

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no

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included with the merits in an answer. All procedural

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defenses, including exhaustion, instead must be raised by

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motion to dismiss.

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6. In

petition

motion

merit.

If

under

procedural

any

must

answer

§

be
to

raised
dismiss.

Respondents

2254(b)(2)

defenses,

filed

together

do

set

including

on

the

in

Procedural

seek

forth

single

defenses

dismissal

in

of

Cassett

exhaustion,

merits,

a

will

Respondents

v.

be

must

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specifically cite to and address the applicable state court

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written decision and state court record materials, if any,

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regarding each claim within the response as to that claim.

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7. Any additional state court record and related exhibits must

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be filed in accordance with LR IA 10-3, LR IC 2-2, and

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LR

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additional exhibit by number or letter. The index must be

3-3 and include a separate index identifying each

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Case 3:17-cv-00721-HDM-CLB Document 52 Filed 02/10/22 Page 3 of 3

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filed

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document to receive the base docket number (e.g., ECF

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No. 10). Each exhibit will then be filed as “attachments”

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to the base document—the index—to receive a sequenced sub-

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docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B

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(ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth).

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If the exhibits will span more than one filing, the base

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document in each successive filing must be either a copy

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of the index or volume cover page. See LR IC 2-2(a)(3)(A).

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in

CM/ECF’s

8. Notwithstanding

LR

document

IC

upload

2-2(g),

screen

paper

as

copies

the

of

base

any

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electronically filed exhibits—for this case—need not be

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provided to chambers or to the staff attorney, unless later

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directed by the court.

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IT IS SO ORDERED.

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DATED: this 10th day of February, 2022.

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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