Bailey v. Williams

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ANTHONY BAILEY, Case No. 2:19-cv-01725-GMN-BNW

6 Petitioner, v. ORDER 7 BRIAN WILLIAMS, et al., 8 Respondents. 9 10 This matter is before the court on Petitioner Anthony Bailey’s motions to reopen this 11 proceeding (ECF No. 92; 93 (“motions”)) following a stay and abeyance allowing him to exhaust 12 claims alleged in his petition for writ of habeas corpus. (See ECF No. 90.) Respondents do not 13 oppose reopening this action; however, they object to Bailey’s attachment of a new federal habeas 14 petition (ECF No. 92 at 7–57) to his motion. (Id.) Respondents further assert that they do not 15 concede any claims raised by this action or waive any defenses and disagree with Bailey’s assertion 16 that they previously waived defenses or responses to Bailey’s claims during the state court 17 proceedings for purposes of this action. (Id.) Bailey did not file reply briefs in support of his 18 motions. 19 The court will grant Bailey’s motions to reopen this action (ECF No. 92; 93). See United 20 States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). The court will furthermore construe 21 Bailey’s filing of a new petition (ECF No. 92 at 7–57) as a motion to amend the petition and will 22 order a briefing schedule before ruling whether Bailey may amend the petition. See Woods v. 23 Carey, 525 F.3d 886, 890 (9th Cir. 2008) (holding documents filed pro se are to be liberally 24 construed and where a new pro se habeas petition is filed before the adjudication of a prior habeas 25 petition, the new petition should be construed as a motion to amend the pending petition); see also 26 /// 27 /// 28 /// 1 Fed. R. Civ. P. 15. The court defers ruling on issues of waiver and defenses until raised in an 2 appropriate motion or on the merits. 3 IT IS THEREFORE ORDERED: 4 1. Bailey’s motions to reopen this action (ECF Nos. 92; 93) ARE GRANTED. 5 2. As the stay is lifted by this order, the clerk of the court will reopen this action. 6 3. The clerk of the court is directed to file, in the present action, a copy of the petition 7 filed at ECF No. 92 at pages 7–57 and designate it a “motion to amend the petition.” 8 4. Respondents will have 21 days after the entry of this order to file an opposition to the 9 motion to amend the petition (“opposition”). 10 5. Bailey will have 14 days following the filing of Respondents’ opposition to file a reply. 11 DATED: December 6, 2022 12

13 ________________________________ GLORIA M. NAVARRO 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28