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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN EDWARD KIRBY,

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Petitioner,

v.

ORDER

WARDEN BRIETENBACH,
Respondents.

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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:

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1. The Federal Public Defender, through Laura Barrera, Esq., is appointed as

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counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will

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represent Petitioner in all federal proceedings related to this matter,

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including any appeals or certiorari proceedings, unless allowed to

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withdraw.

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2. Petitioner will have 90 days from entry of this order to file an amended

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petition and/or seek other appropriate relief. This deadline and any

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extension thereof may not be construed as implied findings regarding the

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federal limitation period or a basis for tolling. Petitioner at all times remains

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responsible for calculating the running of the federal limitation period and

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timely asserting claims, without regard to any court-ordered deadlines or

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extensions. Thus, a petition or amended petition filed within a court-

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ordered deadline may still be dismissed as untimely if it violates the statute

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of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

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3. Respondents must file a response to the amended petition, including

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

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petition. Petitioner may file a reply within 60 days of service of the answer.

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However, Local Rule LR 7-2(b) governs the response and reply time to any

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motion filed by either party, including motions filed in lieu of a pleading.

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4. Any procedural defenses Respondents raise to the counseled amended

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petition must be raised together in a single, consolidated motion to dismiss.

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Successive motions to dismiss will not be entertained, and any procedural

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defenses omitted from the consolidated motion to dismiss will be waived.

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Respondents may not file a response that consolidates their procedural

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defenses, if any, with their response on the merits. But arguments that an

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unexhausted claim clearly lacks merit may be included a procedural-

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defense response. If Respondents seek dismissal of unexhausted claims

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under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to

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dismiss, not in the answer; and (2) specifically direct their argument to the

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standard for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart,

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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

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procedural defenses, including exhaustion, must be raised in a single

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motion to dismiss.

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5. In any answer filed on the merits, Respondents must specifically cite to and

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address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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6. Respondents must file the state court exhibits relevant to their response in

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chronological order.

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7. All state court records and related exhibits must be filed in accordance with

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LR IA 10-3 and LR IC 2-2 and include a separate index identifying each

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exhibit by number or letter. The index must be filed in CM/ECF’s document

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upload screen as the base document to receive the base docket number

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(e.g., ECF No. 10). Each exhibit must then be filed as “attachments” to the

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base document to receive a sequenced sub-docket number (e.g., Exhibit A

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(ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so

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forth). If the exhibits will span more than one filing, the base document in

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each successive filing must be either a copy of the index or volume cover

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page. See LR IC 2-2(a)(3)(A).

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8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed

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exhibits need not be provided to chambers or to the staff attorney, unless

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later directed by the court.

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DATED THIS 8th day of May 2024.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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