Armas v. Garrett

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CESAR CONTRERAS ARMAS, Case No. 3:18-cv-00387-HDM-WGC 12 Petitioner, ORDER 13 v. 14 R. BAKER, et al., 15 Respondents. 16 17 This is a habeas corpus action under 28 U.S.C. § 2254. The court stayed this action while 18 petitioner exhausted his available remedies in the state courts. ECF No. 21. The state court 19 proceedings have concluded, and petitioner has filed a motion to reopen. ECF No. 22. 20 Respondents do not oppose the motion. ECF No. 24. Good cause appearing, the court grants 21 petitioner's motion. 22 IT THEREFORE IS ORDERED that petitioner's motion to reopen (ECF No. 5202)) iiss 23 GRANTED. The clerk of the court is directed to reopen this action and to lift the stay. 24 IT FURTHER IS ORDERED that respondents must file a response to the first amended 25 petition (ECF No. 12), including potentially by motion to dismiss, within 60 days entry of this 26 order and that petitioner may file a reply within 30 days of service of an answer. The response 27 and reply time to any motion filed by either party, including a motion filed in lieu of a pleading, 28 will be governed instead by Local Rule LR 7-2(b). 1 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 2 || first amended petition must be raised together in a single consolidated motion to dismiss. In other 3 || words, the court does not wish to address any procedural defenses raised herein either in serial 4 | fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 5 || defenses omitted from such motion to dismiss will be subject to potential waiver. Respondents 6 | must not file a response in this case that consolidates their procedural defenses, if any, with their 7 || response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims 8 | clearly lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): 9 || (a) they must do so within the single motion to dismiss not in the answer; and (b) they must 10 || specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 11 | Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 12 | including exhaustion, may be included with the merits in an answer. All procedural defenses, 13 || including exhaustion, instead must be raised by motion to dismiss. 14 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must 15 | specifically cite to and address the applicable state court written decision and state court record 16 | materials, if any, regarding each claim within the response as to that claim. 17 DATED: October 7, 2020 bral” D ft felth.> HOWARD D. MCKIBBEN 19 United States District Judge 20 21 22 23 24 25 26 27 28