Butler v. Gittere

• Court: District Court, D. Nevada
• Decided: January 18, 2024
• Docket: 3:20-cv-00560
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ***

6 ANTHONY BUTLER, Case No. 3:20-cv-00560-MMD-WGC

7 Petitioner, ORDER v. 8 W. GITTERE, et al., 9 Respondents. 10 11 On July 6, 2021, the Court administratively closed this action pending a ruling on 12 Petitioner Anthony Butler’s motion for relief from final judgment in a separate habeas case 13 filed in 2012.1 (ECF No. 18.) The motion has been resolved and Petitioner now moves to 14 reopen these federal habeas proceedings. (ECF No. 20.) Respondents do not oppose. 15 (ECF No. 21.) 16 It is therefore ordered that Petitioner’s motion to reopen this action (ECF No. 20) is 17 granted. 18 It is further ordered that, as the stay is lifted by this order, the Clerk of Court will 19 reopen the file in this action. 20 It is further ordered that Petitioner will have until April 16, 2024, to file an amended 21 petition and/or seek other appropriate relief. This deadline and any extension thereof may 22 not be construed as implied findings regarding the federal limitation period or a basis for 23 tolling. Petitioner at all times remains responsible for calculating the running of the federal 24 limitation period and timely asserting claims, without regard to any court-ordered deadlines 25 or extensions. Thus, a petition or amended petition filed within a court-ordered deadline 26 may still be dismissed as untimely if it violates the statute of limitations. See Sossa v. Diaz, 27 1See Butler v. State of Nevada, Case No.: 2:12-cv-01682-MMD-GWF (D. Nev. Filed 28 Sept. 25, 2012). 1 729 F.3d 1225, 1235 (9th Cir. 2013). 2 It is further ordered that Respondents will have 60 days to answer, or otherwise 3 respond to, the First Amended Petition for Writ of Habeas Corpus. 4 It is further ordered that Petitioner will have 60 days following service of the answer 5 to file and serve a reply brief. If any motion is filed, the parties will brief the motion in 6 accordance with Rules 7-2 and 7-3 of the Local Rules of Practice. 7 It is further ordered that any procedural defenses Respondents raise to the first 8 amended petition must be raised together in a single consolidated motion to dismiss. 9 Procedural defenses omitted from such motion to dismiss will be subject to potential 10 waiver. Respondents will not file a response in this case that consolidates their procedural 11 defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. 12 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents do seek 13 dismissal of unexhausted claims under § 2254(b)(2), they must do so within the single 14 motion to dismiss, not in the answer, and specifically direct their argument to the standard 15 for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th 16 Cir. 2005). In short, no procedural defenses, including exhaustion, will be included with 17 the merits in an answer. All procedural defenses, including exhaustion, instead must be 18 raised by motion to dismiss. 19 It is further ordered that, in any answer filed on the merits, Respondents must 20 specifically cite to and address the applicable state court written decision and state court 21 record materials, if any, regarding each claim within the response as to that claim. 22 It is further ordered that any additional state court record and related exhibits must 23 be filed in accordance with LR IA 10-3, LR IC 2-2, and LSR 3-3 and include a separate 24 index identifying each additional exhibit by number or letter. The index must be filed in 25 CM/ECF’s document upload screen as the base document to receive the base docket 26 number (e.g., ECF No. 10). Each exhibit will then be filed as “attachments” to the base 27 document—the index—to receive a sequenced sub-docket number (e.g., Exhibit A (ECF 28 No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits 1 || will span more than one filing, the base document in each successive filing must be either 2 || a copy of the index or volume cover page. See LR IC 2-2(a)(3)(A). 3 It is further ordered that, notwithstanding LR IC 2-2(g), paper copies of any 4 || electronically filed exhibits—for this case—need not be provided to chambers or the staff 5 || attorney, unless later directed by the Court. 6 DATED THIS 18" Day of January 2024.

8 eee 9 CHIEF UN TED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28