Kirby v. Brietenbach et al

Filing 17

ORDER - The Federal Public Defender, through Laura Barrera, Esq., is appointed as counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Petitioner will have 90 days from entry of this order to file an amended petition and/or seek other appropriate relief. Amended Petition due by 8/6/2024. Signed by District Judge Anne R. Traum on 5/8/2024. (Copies have been distributed pursuant to the NEF - DLS)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 JOHN EDWARD KIRBY, 11 Petitioner, v. ORDER WARDEN BRIETENBACH, Respondents. 9 10 Case No. 3:24-cv-00002-ART-CSD Following the Notice of Appearance (ECF No. 15) by the Federal Public Defender on behalf of Petitioner John Edward Kirby, it is hereby ordered: 12 1. The Federal Public Defender, through Laura Barrera, Esq., is appointed as 13 counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will 14 represent Petitioner in all federal proceedings related to this matter, 15 including any appeals or certiorari proceedings, unless allowed to 16 withdraw. 17 2. Petitioner will have 90 days from entry of this order to file an amended 18 petition and/or seek other appropriate relief. This deadline and any 19 extension thereof may not be construed as implied findings regarding the 20 federal limitation period or a basis for tolling. Petitioner at all times remains 21 responsible for calculating the running of the federal limitation period and 22 timely asserting claims, without regard to any court-ordered deadlines or 23 extensions. Thus, a petition or amended petition filed within a court- 24 ordered deadline may still be dismissed as untimely if it violates the statute 25 of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 26 3. Respondents must file a response to the amended petition, including 27 potentially by motion to dismiss, within 60 days of service of an amended 28 petition. Petitioner may file a reply within 60 days of service of the answer. 1 1 However, Local Rule LR 7-2(b) governs the response and reply time to any 2 motion filed by either party, including motions filed in lieu of a pleading. 3 4. Any procedural defenses Respondents raise to the counseled amended 4 petition must be raised together in a single, consolidated motion to dismiss. 5 Successive motions to dismiss will not be entertained, and any procedural 6 defenses omitted from the consolidated motion to dismiss will be waived. 7 Respondents may not file a response that consolidates their procedural 8 defenses, if any, with their response on the merits. But arguments that an 9 unexhausted claim clearly lacks merit may be included a procedural- 10 defense response. If Respondents seek dismissal of unexhausted claims 11 under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to 12 dismiss, not in the answer; and (2) specifically direct their argument to the 13 standard for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 14 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no procedural defenses, 15 including exhaustion, may be included with the merits in an answer. All 16 procedural defenses, including exhaustion, must be raised in a single 17 motion to dismiss. 18 5. In any answer filed on the merits, Respondents must specifically cite to and 19 address the applicable state court written decision and state court record 20 materials, if any, regarding each claim within the response as to that claim. 21 6. Respondents must file the state court exhibits relevant to their response in 22 chronological order. 23 7. All state court records and related exhibits must be filed in accordance with 24 LR IA 10-3 and LR IC 2-2 and include a separate index identifying each 25 exhibit by number or letter. The index must be filed in CM/ECF’s document 26 upload screen as the base document to receive the base docket number 27 (e.g., ECF No. 10). Each exhibit must then be filed as “attachments” to the 28 base document to receive a sequenced sub-docket number (e.g., Exhibit A 2 1 (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so 2 forth). If the exhibits will span more than one filing, the base document in 3 each successive filing must be either a copy of the index or volume cover 4 page. See LR IC 2-2(a)(3)(A). 5 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed 6 exhibits need not be provided to chambers or to the staff attorney, unless 7 later directed by the court. 8 9 10 DATED THIS 8th day of May 2024. 11 12 13 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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