Camacho v. Garrett

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CIRO CAMACHO, Case No. 3:23-cv-00001-MMD-CSD

7 Petitioner, ORDER v. 8

9 TIM GARRETT, et al.,

10 Respondents.

11 On January 5, 2023, this Court granted Petitioner Ciro Camacho’s motion for 12 appointment of counsel and gave the Federal Public Defender 30 days to: (1) undertake 13 direct representation of Petitioner by filing a notice of appearance; or (2) indicate the 14 office’s inability to represent Petitioner in these proceedings. (ECF No. 3.) On February 15 1, 2023, the Federal Public Defender filed a notice of appearance. (ECF No. 8.) 16 It is therefore ordered that the Federal Public Defender, through Amelia L. Bizzaro, 17 Esq., is appointed as counsel for Petitioner Ciro Camacho pursuant to 18 U.S.C. § 18 3006A(a)(2)(B). Counsel will represent Petitioner in all federal proceedings related to this 19 matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 20 It is further ordered that Petitioner shall have up to and including 90 days from 21 entry of this order within which to file an amended petition and/or seek other appropriate 22 relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any 23 implied finding as to the expiration of the federal limitation period and/or of a basis for 24 tolling during the time period established. Petitioner remains responsible for calculating 25 the running of the federal limitation period and timely asserting claims, without regard to 26 any deadlines established or extensions granted herein. That is, by setting a deadline to 27 amend the petition and/or by granting any extension thereof, the Court makes no finding 1 or representation that the petition, any amendments thereto, and/or any claims contained 2 therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 3 (9th Cir. 2013). 4 It is further ordered that Respondents must file a response to the amended petition, 5 including potentially by motion to dismiss, within 60 days of service of an amended petition 6 and that Petitioner may file a reply thereto within 30 days of service of the answer. The 7 response and reply time to any motion filed by either party, including a motion filed in lieu 8 of a pleading, shall be governed instead by Local Rule LR 7-2(b). 9 It is further ordered that any procedural defenses raised by Respondents to the 10 counseled amended petition shall be raised together in a single consolidated motion to 11 dismiss. In other words, the Court does not wish to address any procedural defenses 12 raised herein either in seriatum fashion in multiple successive motions to dismiss or 13 embedded in the answer. Procedural defenses omitted from such motion to dismiss will 14 be subject to potential waiver. Respondents may not file a response in this case that 15 consolidates their procedural defenses, if any, with their response on the merits, except 16 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 17 Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must 18 do so within the single motion to dismiss not in the answer; and (b) they must specifically 19 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett 20 v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 21 including exhaustion, shall be included with the merits in an answer. All procedural 22 defenses, including exhaustion, instead must be raised by motion to dismiss. 23 It is further ordered that, in any answer filed on the merits, Respondents must 24 specifically cite to and address the applicable state court written decision and state court 25 record materials, if any, regarding each claim within the response as to that claim. 26 It is further ordered that any state court record and related exhibits filed herein by 27 either Petitioner or Respondents must be filed with a separate index of exhibits identifying 1 || by the number or numbers of the exhibits in the attachment. If the exhibits filed will span 2 || more than one ECF number in the record, the first document under each successive ECF 3 || number must be either another copy of the index, a volume cover page, or some other 4 || document serving as a filler, so that each exhibit under the ECF number thereafter will be 5 || listed under an attachment number (/.e., attachment 1, 2, etc.). 6 It is further ordered that the hard copy of any exhibits filed by either counsel must 7 || be delivered—for this case—to the Reno Clerk's Office. Courtesy copies of exhibits may 8 || not be provided. 9 DATED THIS 1* Day of February 2023. 10

12 MIRANDAM.DU. SS 43 CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28