Garcia v. Johnson

Opinion

1 Rene L. Valladares Federal Public Defender 2 Nevada State Bar No. 11479 3 *Amelia L. Bizzaro Assistant Federal Public Defender 4 Wisconsin State Bar No. 1045709 *Andréa L. Vieira 5 Assistant Federal Public Defender 6 Nevada State Bar No. 15667 411 E. Bonneville Ave., Ste. 250 7 Las Vegas, Nevada 89101 (702) 388-6577 8 Amelia_Bizzaro@fd.org 9 Andrea_Vieira@fd.org

10 *Attorney for Petitioner Evaristo Jonathan Garcia 11

12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA

14 Evaristo Jonathan Garcia,

15 Petitioner, Case No. 2:17-cv-03095-JCM-CWH

16 v. Unopposed Petitioner’s Motion for 17 Extension of Time to File Response W.A.. Gittere, et al.,1 to ECF 67 18 Respondents. (First Request) 19

20 21 22 1 Evaristo Garcia is confined at High Desert State Prison and Jeremy Bean is the current warden. Evaristo’s pro se petition previously named the Nevada 23 Department of Corrections. Evaristo requests Jeremy Bean be substituted in as the respondent. See Rules Governing § 2254 Petitions, Rule 2(a) (requiring a prisoner- 24 petitioner name the “state officer having custody” as the respondent.). See also 25 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (per curiam) (typical the state officer who has custody is “the warden of the facility in which the 26 petitioner is incarcerated.”). This Court may order substitution of a party at any time under Rule 25 and Rule 15 permits amendments to pleadings. Fed. R. Civ. P. 25(d), 27 15(a)(2). 1 2 POINTS AND AUTHORITIES 3 Petitioner Evaristo Garcia respectfully asks this Court to enter an Order 4 extending his deadline by 30 days until January 2, 2025, to inform this Court on how 5 he wishes to proceed following this Court’s order finding part of one claim 6 unexhausted.2 7 This is Garcia’s first request to extend this deadline. This request for an 8 extension is made in good faith and not solely for the purpose of delay. There is good 9 cause for the requested extension of time. 10 On October 30, 2024, this Court entered an Order denying in part and granting 11 in part Respondents’ Motion to Dismiss. 3 In that Order, this Court allowed Garcia 12 thirty days to “(1) inform this court in a sworn declaration that he wishes to formally 13 and forever abandon the unexhausted grounds for relief in his federal habeas petition 14 and proceed on the exhausted grounds; OR (2) inform this court in a sworn 15 declaration that he wishes to dismiss this petition without prejudice in order to return 16 to state court to exhaust his unexhausted grounds; OR (3) file a motion for a stay and 17 abeyance, asking this court to hold his exhausted grounds in abeyance while he 18 returns to state court to exhaust his unexhausted grounds.”4 19 Undersigned spoke with Garcia, who indicated his desire to elect option 1. 20 Counsel mailed Garcia a declaration to that effect on November 12, 2024. 21 The current deadline for Garcia’s response is Monday, December 2, 2024. 22 Counsel intends to file the declaration upon receipt. Because of delays in mail 23 processing at correctional facilities and the holiday, Garcia seeks this additional time 24

25 2 ECF No. 67. 26 3 ECF No. 67. 27 4 ECF No. 67, 11:7-13. 1| | to file his declaration. 2 On November 25, 2024, counsel exchanged emails with Heather Procter, counsel for the respondents, who reported that she does not object to this request. 4 Accordingly, Garcia respectfully asks this Court to grant this request and extend his deadline for filing his response by 30 days until January 2, 2025. 6 Dated: November 26, 2024. 7 Respectfully submitted,

9 Rene L. Valladares 10 Federal Public Defender

11 /s/ Andréa L. Vieira 12 Andréa L. Vieira Assistant Federal Public Defender 13 14 IT IS SO ORDERED: 15 16 Mitts ©. Atalian 17 United States District Judge 18 Dated: December 2, 2024 _ 19 20 21 22 23 24 25 26 27