Campbell v. Williams

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 DAVEYON CAMPBELL, Case No. 2:19-cv-01374-GMN-EJY

10 Petitioner, ORDER

11 v. 12 WARDEN BRIAN WILLIAMS, et al., 13 Respondents. 14 15 This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 16 2254 by Nevada state prisoner Daveyon Campbell. On January 9, 2020, this court 17 granted petitioner’s motion for counsel and appointed the Federal Public Defender to 18 represent petitioner in this action (ECF No. 7). On February 7, 2020, Jason Carr of the 19 Federal Public Defender’s Office appeared on behalf of petitioner (ECF No. 11). The 20 court now sets a schedule for further proceedings in this action. 21 IT IS THEREFORE ORDERED that counsel for petitioner shall meet with 22 petitioner as soon as reasonably possible, if counsel has not already done so, to: (a) 23 review the procedures applicable in cases under 28 U.S.C. § 2254; (b) discuss and 24 explore with petitioner, as fully as possible, the potential grounds for habeas corpus 25 relief in petitioner’s case; and (c) advise petitioner that all possible grounds for habeas 26 corpus relief must be raised at this time in this action and that the failure to do so will 27 likely result in any omitted grounds being barred from future review. 1 IT IS FURTHER ORDERED that petitioner shall have 90 days from the date of 2 this order to FILE AND SERVE on respondents an amended petition for writ of habeas 3 corpus, which shall include all known grounds for relief (both exhausted and 4 unexhausted). 5 IT IS FURTHER ORDERED that respondents shall have 45 days after service of 6 an amended petition within which to answer, or otherwise respond to, the amended 7 petition. If petitioner does not file an amended petition, respondents shall have 45 days 8 from the date on which the amended petition is due within which to answer, or otherwise 9 respond to, petitioner’s original petition. Any response filed shall comply with the 10 remaining provisions below, which are entered pursuant to Habeas Rule 5. 11 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 12 in this case shall be raised together in a single consolidated motion to dismiss. In other 13 words, the court does not wish to address any procedural defenses raised herein either 14 in seriatum fashion in multiple successive motions to dismiss or embedded in the 15 answer. Procedural defenses omitted from such motion to dismiss will be subject to 16 potential waiver. Respondents shall not file a response in this case that consolidates 17 their procedural defenses, if any, with their response on the merits, except pursuant to 18 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 19 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 20 do so within the single motion to dismiss not in the answer; and (b) they shall 21 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set 22 forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no 23 procedural defenses, including exhaustion, shall be included with the merits in an 24 answer. All procedural defenses, including exhaustion, instead must be raised by 25 motion to dismiss. 26 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 27 shall specifically cite to and address the applicable state court written decision and state 1 IT IS FURTHER ORDERED that any additional state court record exhibits filed 2 herein by either petitioner or respondents shall be filed with a separate index of exhibits 3 identifying the exhibits by number. The CM/ECF attachments that are filed further shall 4 be identified by the number or numbers of the exhibits in the attachment. 5 IT IS FURTHER ORDERED that, if and when respondents file an answer or 6 other responsive pleading, petitioner shall have 30 days after service of the answer or 7 responsive pleading to file and serve his response. 8 IT IS FURTHER ORDERED that any state court record exhibits filed by the 9 parties herein shall be filed with an index of exhibits identifying the exhibits by number 10 or letter. The CM/ECF attachments that are filed shall further be identified by the 11 number or letter of the exhibit in the attachment. 12 IT IS FURTHER ORDERED that, at this time, the parties shall send courtesy 13 copies of any responsive pleading and all INDICES OF EXHIBITS ONLY to the Reno 14 Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 S. 15 Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 16 outside of the mailing address label. No further courtesy copies are required unless 17 and until requested by the court. 18 19 DATED: 10 February 2020. 20

21 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 22

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