Winkler v. Baca et al

Filing 4

ORDER that petitioner's application to proceed in forma pauperis ECF No. 1 is granted; Clerk directed to file the petition for a writ of habeas corpus ECF No. 1 -1; Clerk directed to electronically serve the AG with a copy of the petition a nd this order along with regenerated NEF of remaining filings (e-service and NEF regenerated on 3/23/2018); respondents will have until 05/22/2018 to answer or otherwise respond to the petition; any exhibits filed by the parties must be filed with a separate index of exhibits identifying the exhibits by number or letter; hard copy of any additional state court record exhibits must be forwarded for this case to the Reno Clerks Office; petitioner will have (30) days from service of the an swer, motion to dismiss or other response to mail a reply or response to the Clerk for filing. See Order for specific details and information. Signed by Judge Miranda M. Du on 3/23/2018. (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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***

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GARY JOSEPH WINKLER,

Case No. 3:18-cv-00115-MMD-WGC

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Petitioner,
v.

ORDER

ISIDRO BACA, et al.,
Respondents.

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This action comes before the Court on petitioner’s application to proceed in forma

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pauperis (ECF No. 1) and for initial screening review pursuant to Rule 4 of the Rules

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Governing Habeas Corpus Cases Under Section 2254.

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The Court finds petitioner cannot pay the filing fee. The application to proceed in

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forma pauperis will therefore be granted. Further, following initial review of the petition,

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the Court will direct a response.

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It is therefore ordered that that petitioner’s application to proceed in forma pauperis
(ECF No. 1) is granted and that petitioner will not be required to pay the filing fee.

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It is further ordered that the Clerk of Court file the petition (ECF No. 1-1).

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It is further ordered that the Clerk informally electronically serve the Nevada

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Attorney General with a copy of the petition and this order, along with regenerated notices

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of electronic filing of the remaining filings herein.

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It is further ordered that respondents will have sixty (60) days from entry of this

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order within which to respond to the petition. Any response filed must comply with the

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remaining provisions below.

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It is further ordered that any procedural defenses raised by respondents in this

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case must be raised together in a single consolidated motion to dismiss. Respondents

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must not file a response in this case that consolidates their procedural defenses, if any,

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with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any

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unexhausted claims clearly lacking merit. If respondents do seek dismissal of

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unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to

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dismiss not in the answer; and (b) they shall specifically direct their argument to the

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standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614,

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623-24 (9th Cir. 2005). All procedural defenses, including exhaustion, must be raised by

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motion to dismiss.

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It is further 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 is further ordered that respondents must file a set of state court exhibits relevant

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to the response filed to the petition, in chronological order and indexed as discussed,

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infra.

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It is further ordered that all state court record exhibits filed herein must be filed with

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a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments

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that are filed further must be identified by the number or numbers of the exhibits in the

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attachment. The purpose of this provision is so that the Court and any reviewing court

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thereafter will be able to quickly determine from the face of the electronic docket sheet

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which numbered exhibits are filed in which attachments.
It is further ordered that counsel additionally will send a hard copy of all exhibits

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filed, for this case, to the Reno Clerk’s Office.

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It is further ordered that petitioner will have thirty (30) days from service of the

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answer, motion to dismiss, or other response to mail a reply or response to the Clerk of

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Court for filing.

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DATED THIS 23rd day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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