Dunn v. Baca

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 PATRICK DUNN, Case No. 3:19-cv-00702-MMD-WGC

7 Petitioner, ORDER v. 8

9 ISIDRO BACA, et al.,

10 Respondents.

11 12 Petitioner Patrick Dunn filed a notice of appearance by the Federal Public Defender 13 (ECF No. 9) in this habeas corpus matter under 28 U.S.C. § 2254. 14 It therefore is ordered that the Federal Public Defender is appointed as counsel for 15 Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent Petitioner in all 16 federal proceedings related to this matter, including any appeals or certiorari proceedings, 17 unless allowed to withdraw. 18 It further is ordered that Petitioner will have until, up to and including, 90 days from 19 entry of this order within which to file an amended petition and/or seek other appropriate 20 relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any 21 implied finding as to the expiration of the federal limitation period and/or of a basis for 22 tolling during the time period established. Petitioner always remains responsible for 23 calculating the running of the federal limitation period and timely asserting claims, without 24 regard to any deadlines established or extensions granted herein. That is, by setting a 25 deadline to amend the petition and/or by granting any extension thereof, the Court makes 26 no finding or representation that the petition, any amendments thereto, and/or any claims 27 contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 28 1225, 1235 (9th Cir. 2013). 2 including potentially by motion to dismiss, within 60 days of service of an amended petition 3 and that Petitioner may file a reply within 30 days of service of an answer. The response 4 and reply time to any motion filed by either party, including a motion filed in lieu of a 5 pleading, will be governed instead by Local Rule LR 7-2(b). 6 It further is ordered that any procedural defenses raised by Respondents to the 7 counseled amended petition must be raised together in a single consolidated motion to 8 dismiss. In other words, the Court does not wish to address any procedural defenses 9 raised herein either in serial fashion in multiple successive motions to dismiss or 10 embedded in the answer. Procedural defenses omitted from such motion to dismiss will 11 be subject to potential waiver. Respondents must not file a response in this case that 12 consolidates their procedural defenses, if any, with their response on the merits, except 13 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 14 Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must 15 do so within the single motion to dismiss not in the answer; and (b) they must specifically 16 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett 17 v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 18 including exhaustion, will be included with the merits in an answer. All procedural 19 defenses, including exhaustion, instead must be raised by motion to dismiss. 20 It further is ordered that, in any answer filed on the merits, Respondents must 21 specifically cite to and address the applicable state court written decision and state court 22 record materials, if any, regarding each claim within the response as to that claim. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 It further is ordered that, notwithstanding Local Rule LR IC 2-2(g), paper copies of 2 || any electronically filed exhibits need not be provided to chambers or to the staff attorney, 3 || unless later directed by the Court. 4 DATED THIS 11* day of February 2020.

6 Lf _ MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28