Yohey v. Russell et al

Filing 11

ORDER - The Federal Public Defender is appointed as counsel for Petitioner. Amended Petition due within 120 days from entry of this order (3/19/2021). Response to the amended petition due within 60 days of service of amended petition. Reply due 30 days thereafter. Paper copies of any e-filed exhibits need not be provided to chambers or to the staff attorney, unless later directed by the Court. Signed by Chief Judge Miranda M. Du on 11/18/2020. (Copies have been distributed pursuant to the NEF - DRM) Modified on 11/19/2020 to correct both file and signature dates (DRM).

Case 3:20-cv-00441-MMD-CLB Document 11 Filed 11/18/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SLATER L. YOHEY,

Case No. 3:20-cv-00441-MMD-CLB
Petitioner,

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ORDER

v.
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PERRY RUSSELL, et al.,
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Respondents.
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Petitioner Slater L. Yohey filed a notice of appearance by the Federal Public

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Defender (ECF No. 10) in this habeas corpus matter under 28 U.S.C. § 2254.

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It is therefore ordered that the Federal Public Defender is appointed as counsel for

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Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent Petitioner in all

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federal proceedings related to this matter, including any appeals or certiorari proceedings,

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unless allowed to withdraw.

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It is further ordered that Petitioner will have until up to and including 120 days from

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entry of this order within which to file an amended petition and/or seek other appropriate

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relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any

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implied finding as to the expiration of the federal limitation period and/or of a basis for

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tolling during the time period established. Petitioner always remains responsible for

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calculating the running of the federal limitation period and timely asserting claims, without

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regard to any deadlines established or extensions granted herein. That is, by setting a

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deadline to amend the petition and/or by granting any extension thereof, the Court makes

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no finding or representation that the petition, any amendments thereto, and/or any claims

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contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d

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1225, 1235 (9th Cir. 2013).

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Case 3:20-cv-00441-MMD-CLB Document 11 Filed 11/18/20 Page 2 of 3

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It is further ordered that Respondents must file a response to the amended petition,

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including potentially by motion to dismiss, within 60 days of service of an amended petition,

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and that Petitioner may file a reply within 30 days of service of an answer. The response

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and reply time to any motion filed by either party, including a motion filed in lieu of a

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pleading, will be governed instead by Local Rule LR 7-2(b).

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It is further ordered that any procedural defenses raised by Respondents to the

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counseled amended petition must be raised together in a single consolidated motion to

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dismiss. In other words, the Court does not wish to address any procedural defenses

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raised herein either in serial fashion—in multiple successive motions to dismiss—or

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embedded in the answer. Procedural defenses omitted from such motion to dismiss will

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be subject to potential waiver. Respondents may not file a response in this case that

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consolidates their procedural defenses, if any, with their response on the merits, except

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

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Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must

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do so within the single motion to dismiss, not in the answer; and (b) they must specifically

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direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett

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v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses,

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including exhaustion, may be included with the merits in an answer. All procedural

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defenses, including exhaustion, instead must be raised by 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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Case 3:20-cv-00441-MMD-CLB Document 11 Filed 11/18/20 Page 3 of 3

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It is further ordered that, notwithstanding Local Rule LR IC 2-2(g), paper copies of

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any electronically filed exhibits need not be provided to chambers or to the staff attorney,

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unless later directed by the Court.

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DATED THIS 18th Day of November 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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