Kelsey v. Baker et al

Filing 40

ORDER re ECF No. 38 USCA Order : Clerk of Court shall reopen this action. Within seven (7) days (7/22/2021), Kimberly Sandberg shall file a notice of appearance. Within seven (7) days (7/22/2021), the Respondents shall file the depositi on testimony of John Ohlson and the expert report as supplemental exhibits. Within forty-five (45) days (8/29/2021), Kelsey shall file supplemental briefing addressing the sole issue upon which the Ninth Circuit granted a certificate of a ppealability. Respondents shall respond to Kelsey's briefing within forty-five (45) days after being served with that briefing. Kelsey may then file a reply within thirty (30) days of the response. Signed by Chief Judge Miranda M. Du on 7/15/2021. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

ZACHARY KELSEY,

7

Case No. 3:18-cv-00174-MMD-CLB
Petitioner,

ORDER

v.
8
RENEE BAKER, et al.,
9
Respondents.
10
11

Petitioner Zachary Kelsey filed a petition for writ of habeas corpus under 28 U.S.C.

12

§ 2254 on May 16, 2018. (ECF No. 6.) This Court denied Kelsey’s petition and a certificate

13

of appealability on August 22, 2019. (ECF No. 27.) Kelsey appealed on September 4,

14

2019, and the United States Court of Appeals for the Ninth Circuit granted a certificate of

15

appealability with respect to the following issue: whether Kelsey’s trial counsel provided

16

ineffective assistance, including whether his counsel was ineffective for (a) waiving

17

closing argument, or (b) failing to consult with or retain an expert regarding the victim’s

18

cause of death. (ECF Nos. 29, 31.) The United States Court of Appeals for the Ninth

19

Circuit thereafter granted Kelsey counsel, and Kimberly Sandberg of the Federal Public

20

Defender, District of Nevada appeared on March 16, 2020. (See ECF No. 32.)

21

Following the filing of his opening brief, Kelsey moved for a full remand because

22

important documents—namely, the deposition testimony of John Ohlson and an expert

23

report—from the state court record were not reviewed by this Court when it denied his

24

petition. The United States Court of Appeals for the Ninth Circuit granted the motion on

25

July 12, 2021, pursuant to Nasby v. McDaniel, 853 F.3d 1049, 1054 (9th Cir. 2017), and

26

remanded the case for further proceedings. Based on this order, this action needs to be

27

reopened.

28

It is therefore ordered that the Clerk of Court shall reopen this action.

1
2

It is further ordered that, within seven (7) days, Kimberly Sandberg shall file a
notice of appearance.

3

It is further ordered that, within seven (7) days, the Respondents shall file the

4

deposition testimony of John Ohlson and the expert report as supplemental exhibits. A

5

hard copy (courtesy copy) of the exhibits shall not be provided.

6

It is further ordered that, within forty-five (45) days, Kelsey shall file supplemental

7

briefing addressing the sole issue upon which the United States Court of Appeals for the

8

Ninth Circuit granted a certificate of appealability: whether Kelsey’s trial counsel provided

9

ineffective assistance, including whether his counsel was ineffective for (a) waiving

10

closing argument, or (b) failing to consult with or retain an expert regarding the victim’s

11

cause of death.

12

It is further ordered that the Respondents shall respond to Kelsey’s briefing within

13

forty-five (45) days after being served with that briefing. Kelsey may then file a reply within

14

thirty (30) days of the response.

15

DATED THIS 15th Day of July 2021.

16
17
18
19

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28

2