Edmisten v. Gittere

• Court: District Court, D. Nevada
• Decided: March 28, 2022
• Docket: 3:22-cv-00118
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 JUSTIN EDMISTEN, Case No. 3:22-cv-00118-RCJ-CLB

10 Petitioner, ORDER v. 11 WILLIAM L. GITTERE, et al., 12 Respondents. 13 Justin Edmisten has submitted a pro se 28 U.S.C. § 2254 petition for a writ of 14 habeas corpus. His application to proceed in forma pauperis (ECF No. 1) is granted. 15 16 The court has reviewed the petition pursuant to Habeas Rule 4 and directs that it be 17 served on respondents.1 18 A petition for federal habeas corpus should include all claims for relief of which 19 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 20 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 21 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 22 petition, he should notify the court of that as soon as possible, perhaps by means of a 23 24 motion to amend his petition to add the claim. 25 26 27

1 Accordingly, Edmisten’s motions seeking preliminary review of the petition are denied as moot 1 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma 2 pauperis (ECF No. 1) is GRANTED. 3 IT IS FURTHER ORDERED that the Clerk of Court detach, file, and electronically 4 SERVE the petition (ECF No. 1-1) on the respondents. 5 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 6 7 General, as counsel for respondents and provide respondents an electronic copy of all 8 items previously filed in this case by regenerating the Notice of Electronic Filing to the 9 office of the AG only. 10 IT IS FURTHER ORDERED that respondents file a response to the petition, 11 including potentially by motion to dismiss, within 90 days of service of the petition, with 12 any requests for relief by petitioner by motion otherwise being subject to the normal 13 briefing schedule under the local rules. Any response filed is to comply with the 14 15 remaining provisions below, which are entered pursuant to Habeas Rule 5. 16 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 17 in this case be raised together in a single consolidated motion to dismiss. In other 18 words, the court does not wish to address any procedural defenses raised herein either 19 in seriatum fashion in multiple successive motions to dismiss or embedded in the 20 answer. Procedural defenses omitted from such motion to dismiss will be subject to 21 potential waiver. Respondents should not file a response in this case that consolidates 22 23 their procedural defenses, if any, with their response on the merits, except pursuant to 24 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 25 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will 26 do so within the single motion to dismiss not in the answer; and (b) they will specifically 27 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 1 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 2 defenses, including exhaustion, should be included with the merits in an answer. All 3 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 4 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 5 specifically cite to and address the applicable state court written decision and state 6 7 court record materials, if any, regarding each claim within the response as to that claim. 8 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 9 answer, motion to dismiss, or other response to file a reply or opposition, with any other 10 requests for relief by respondents by motion otherwise being subject to the normal 11 briefing schedule under the local rules. 12 IT IS FURTHER ORDERED that any additional state court record exhibits filed 13 herein by either petitioner or respondents be filed with a separate index of exhibits 14 15 identifying the exhibits by number. The parties will identify filed CM/ECF attachments 16 by the number or numbers of the exhibits in the attachment. 17 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 18 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the 19 Reno Division of this court. Courtesy copies should be mailed to the Clerk of Court, 400 20 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 21 22 outside of the mailing address label. No further courtesy copies are required unless 23 and until requested by the court. 24

25 26 27 1 IT IS FURTHER ORDERED that petitioner's motion for Rule 4 preliminary rule 2|| and motion for court to follow the statutes (ECF Nos. 4 and 5) are both DENIED as moot. 5 6 DATED: 28 March 2022. Ge 8 UNITED STAVES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28