Nelson v. Warden Filson et al

Filing 46

ORDER granting ECF No. 45 Motion to Extend Time. Petitioner's Response to the Motion to Dismiss (ECF No. 44 ) is due by December 28, 2020. Signed by Judge Robert C. Jones on 11/24/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:18-cv-00029-RCJ-CLB Document 46 Filed 11/24/20 Page 1 of 3

1

4

MARIO D. VALENCIA
Nevada Bar No. 6154
40 S. Stephanie St., Ste. 201
Henderson, NV 89012
T. [phone]
F. [phone]
[e-mail]

5

Counsel for Charles Nelson

2
3

6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
CHARLES NELSON,
9
10
11
12
13

)
)
Petitioner,
)
)
v.
)
)
WILLIAM GITTERE, et al.,
)
)
Respondents.
)
____________________________________)

3:18-cv-00029-RCJ-CLB
ORDER GRANTING UNOPPOSED
MOTION FOR EXTENSION OF
TIME TO FILE A RESPONSE TO
RESPONDENTS’ MOTION TO
DISMISS SECOND-AMENDED
FEDERAL HABEAS PETITION
(ECF No. 44)Request)
(First

14
Pursuant to Rule 12 of the Rules Governing Section 2254 Cases and Section 2255
15
Proceedings, and Fed. R. Civ. P. 6(b)(1)(A) and LR IA 6-1, Petitioner, Charles Nelson, moves
16
for a 30-day extension of time to file his response to Respondents’ Motion to Dismiss Second17
Amended Federal Habeas Petition (ECF No. 44) (hereinafter “Motion to Dismiss”). The Motion
18
to Dismiss was filed on September 28, 2020. See ECF No. 44.
19
This motion is unopposed. This is Nelson’s first request for an extension of time to file
20
his response to the Motion to Dismiss. His response is currently due Friday, November 27, 2020.
21
See ECF No. 22 at 2 (“Petitioner will have 60 days following service of a motion to dismiss to
22
respond to the motion.”); see also ECF No. 41 at 2 (order extending the time for petitioner to file
23
his second amended petition but ordering that “in all other respects” the schedule for further
24
proceedings set forth the court’s prior order, ECF No. 22, “will remain in effect.”). If this
25

Case 3:18-cv-00029-RCJ-CLB Document 46 Filed 11/24/20 Page 2 of 3

1

unopposed motion is granted, Nelson’s response to the motion to dismiss will be due on or

2

before Monday, December 28, 2020. See Fed. R. Civ. P. 6(a)(1)(C).

3

Reasons for the Extension Requested

4

Respondents have moved to dismiss all of Nelson’s grounds for relief in his second

5

amended 28 U.S.C. § 2254 petition (ECF No. 42) for various reasons, and some for multiple

6

reasons. See ECF No. 44. Respondents claim all of Nelson’s claims should be dismissed

7

because they are either untimely, unexhausted, or not cognizable, or for any combination of these

8

reasons. Ibid.

9

This area of federal habeas practice is factually and legally complex, requiring a

10

significant amount of time re-reading portions of the state court record, researching and

11

analyzing the law addressing relation back and timeliness issues, exhaustion issues and what is

12

considered a technically exhausted claim or a legitimate reason to overcome such a procedural

13

bar, as well as the possibility and grounds for requesting a stay-and-abeyance. Moreover, Nelson

14

must also address whether he will seek additional discovery and request an evidentiary hearing at

15

the time he files his response to the Motion to Dismiss. See ECF No. 22 at 2-3.

16

Counsel for Nelson is a sole practitioner. He has been working on all of the above since

17

being served with the Motion to Dismiss, but he’s also had many other professional deadlines

18

and hearings over the past several weeks that required a substantial amount of time. He therefore

19

has not been able to complete the response to the Motion to Dismiss. Furthermore, counsel

20

needs more time to discuss the Motion to Dismiss, the response to the motion, discovery, and an

21

evidentiary hearing with Nelson. Most of their communication is by mail so that takes additional

22

time, too. And, the request for an additional 30 days also takes into account that we are in the

23

middle of the holiday season and the ever present (it seems) COVID-19 pandemic, which has

24

disrupted so many’s personal and professional lives and seems to be getting worse at the present

25

2

Case 3:18-cv-00029-RCJ-CLB Document 46 Filed 11/24/20 Page 3 of 3

1

time.

2

As noted above, this motion is unopposed. Nelson has been working on the response to

3

the motion to dismiss. He may get it filed before the requested additional 30 days expire, but to

4

be safe and for the reasons stated above Nelson is respectfully asking to have until Monday,

5

December 28, 2020 to file his response.

6
7
8
9

Conclusion
The Court should grant Nelson’s unopposed motion and give him until Monday,
December 28, 2020 to file his response to the Motion to Dismiss (ECF No. 44).
DATED: November 24, 2020.

10
11

s/ Mario D. Valencia
MARIO D. VALENCIA
Counsel for Charles Nelson

12
13
14

IT IS SO ORDERED.

15
16
17

_____________________________
ROBERT C. JONES
District Judge
Dated: November 24, 2020.

18
19
20
21
22
23
24
25

3