1 Rene L. Valladares Federal Public Defender 2 Nevada State Bar No. 11479 3 *Andréa L. Vieira Assistant Federal Public Defender 4 Nevada State Bar No. 15667 411 E. Bonneville Ave., Ste. 250 5 Las Vegas, Nevada 89101 6 (702) 388-6577 Andrea_Vieira@fd.org 7 8 *Attorney for Petitioner Evaristo Jonathan Garcia 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 Evaristo Jonathan Garcia, Case No. 2:17-cv-03095-JCM-CWH 12 Petitioner, 13 v. Unopposed Petitioner’s Motion for 14 Extension of Time to File Reply W.A.. Gittere, et al., 15 (First Request) Respondents. 16 17 Petitioner Evaristo Jonathan Garcia respectfully moves this Court for an 18 extension of time of 60 days, up to and including July 7, 2025, to file Petitioner’s 19 Reply. 20 This is Garcia’s first request to extend this deadline. This request for an 21 extension is made in good faith and not solely for the purpose of delay. Good cause 22 exists for the requested extension because of (1) the complex and voluminous record 23 in this case, (2) the need for newly assigned counsel to thoroughly review the 24 materials; and (3) counsel’s obligations with other matters. 25 Respondents do not oppose this request. Given the complexity of this case and 26 the procedural posture, this extension is necessary to ensure effective assistance of 27 counsel and allow for a comprehensive Reply. 1 POINTS AND AUTHORITIES 2 I. Brief Procedural History 3 After a six-day jury trial that commenced on July 8, 2013, Evaristo Garcia was 4 found guilty of second-degree murder with use of a deadly weapon.1 He was sentenced 5 to two consecutive terms of ten years to life.2 6 On December 20, 2017, petitioner Evaristo Garcia filed a pro se petition for 7 writ of habeas corpus and moved for appointment of counsel.3 8 Nine days later, this court granted Mr. Garcia’s motion and appointed 9 counsel.4 The court ruled that appointment of counsel is in the interests of justice due 10 to, among other things, the following: 11 (1) petitioner’s lengthy sentencing consisting of two consecutive sentences of life with the possibility of parole 12 after a minimum of ten years on each sentence, on his conviction, following a jury trial, of second-degree murder 13 with the use of a deadly weapon; (2) the very limited ability 14 demonstrated by petitioner in articulating his claims in this and the prior action, with petitioner presenting more 15 or less bare documents covering copies of prior state court filings and/or orders; (3) the prospect that petitioner’s 16 access to Nevada specific legal materials and inmate 17 assistance while incarcerated in Arizona may be more limited than the resources that may have been available to 18 him while held within Nevada; and (4) the complexity of the potential procedural and substantive issues presented, 19 including those potentially arising with respect to Martinez 20 v.Ryan, 566 U.S. 1 (2012), following upon counsel not being appointed in the state post-conviction proceedings.5 21 22 23 24 1 ECF No. 36 2 Id. 25 3 ECF Nos. 1-1, 5. 26 4 ECF No. 4. 27 5 Id. at 1–2. 1 AFPD Megan Hoffman was appointed on April 5, 2018.6 On May 10, 2018, 2 AFPD S. Alex Spelman entered an appearance on behalf of Mr. Garcia.7 An amended 3 petition for writ of habeas corpus was filed on February 14, 2019.8 On February 25, 4 2019, this court entered an order sealing this case.9 On April 4, 2019, a stay was 5 entered to allow Mr. Garcia to exhaust his claims in Ground 1 in state court.10 6 Over five months later, AFPD Emma Smith entered her appearance as counsel 7 for Mr. Garcia,11 followed by AFPD Jeremy Baron on October 8, 201912 and AFPD 8 Amelia Bizzaro on October 9, 2020.13 On June 27, 2022, Ms. Bizzaro filed a second 9 Notice of Appearance.14 10 This case was reopened on September 23, 2022.15 A second amended petition 11 was filed on December 6, 2022.16 Respondents filed a motion to dismiss on May 22, 12 2023,17 along with exhibits totaling thousands of pages.18 13 I joined the Office of the Federal Public Defender in October 2024 and entered 14 my appearance in this matter on October 30, 2024.19 An Order denying Respondents’ 15 16 6 ECF No. 9. 17 7 ECF No. 10. 18 8 ECF No. 18. 19 9 ECF No. 22. 10 ECF No. 26. 20 11 ECF No. 27. 21 12 ECF No. 28. 22 13 ECF No. 29. 23 14 ECF No. 30. 24 15 ECF No. 33. 16 ECF No. 36. 25 17 ECF No. 42. 26 18 ECF Nos. 43 – 47. 27 19 ECF No. 66. 1 motion to dismiss in part was entered on the same date.20 Respondents’ Answer to 2 the sealed second amended petition was filed on April 8, 2025.21 3 The record in this case is extensive and voluminous. It spans nearly 20 years 4 dating back to 2006, involves a lengthy pre-trial history, a 2013 six-day jury trial on 5 a murder charge, about four years of state appellate and post-conviction proceedings 6 thereafter, and an additional four years of proceedings following the commencement 7 of this matter and the return to state court. Plus, as this court noted, the potential 8 procedural issues in this case are complex, given Mr. Garcia’s lack of representation 9 for his state habeas proceedings. 22 10 The additional period of time is necessary in order to effectively represent Mr. 11 Garcia. This motion is filed in the interests of justice and not for the purposes of 12 unnecessary delay. 13 II. Good Cause Exists for the Requested Extension 14 Under Rule 6 of the Federal Rules of Civil Procedure, courts have broad 15 discretion to grant extensions of time upon a showing of good cause.23 Rule 6 is to be 16 liberally construed to facilitate resolution of cases on the merits.24 17 The attorney that had been working on this case, Ms. Bizzaro, took the case 18 through the state court proceedings. She led the litigation in both state post- 19 conviction and federal habeas proceedings up to my appearance in October 2024. I 20 am the sixth AFPD assigned to this case. I did not draft any of the prior pleadings 21 and did not participate in the litigation leading up to this point. 22 23 20 ECF No. 67. 24 21 ECF No. 74 25 22 See ECF No. 4 at 1–2. 26 23 Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996). 27 24 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). 1 An extension of time is necessary so that I can review the voluminous file and 2 procedural history of this case. I have not conducted that review due to obligations in 3 other matters and the continuing demands of transitioning into habeas practice and 4 managing a full caseload. Preparing a Reply requires extensive research into 5 procedural default doctrines, the Brady violation claim, and a Martinez argument, 6 and this case has a complex procedural history spanning multiple courts and 7 thousands of pages of records. 8 Notably, my other commitments were time consuming and required significant 9 engagement. I was responsible for completing and filing an Amended Petition in 10 Cotton v. Gittere, et al., Case No. 3:23-cv-00570-MMD-CSD which was due and filed 11 on April 14, 2025. In addition, I presented oral argument in Keller v. Garrett, et al., 12 No. 3:22-cv-00481-ART-CLB, on April 22, 2025, a case that took significant 13 preparation because I had not drafted any of the briefs and, having recently joint the 14 Office of the Federal Public Defender, was not familiar with the case. I had an 15 opposition to a motion to dismiss due on April 4, 2025 in Chaiyakul v. Warden of High 16 Desert State Prison, et al., Case No. 2:22-cv-01650-RFB-MDC, as well as a Certificate 17 of Appealability due on April 23, 2025 in the matter of Garcia vs. Gittere, Case No.
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1 Rene L. Valladares Federal Public Defender 2 Nevada State Bar No. 11479 3 *Andréa L. Vieira Assistant Federal Public Defender 4 Nevada State Bar No. 15667 411 E. Bonneville Ave., Ste. 250 5 Las Vegas, Nevada 89101 6 (702) 388-6577 Andrea_Vieira@fd.org 7 8 *Attorney for Petitioner Evaristo Jonathan Garcia 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 Evaristo Jonathan Garcia, Case No. 2:17-cv-03095-JCM-CWH 12 Petitioner, 13 v. Unopposed Petitioner’s Motion for 14 Extension of Time to File Reply W.A.. Gittere, et al., 15 (First Request) Respondents. 16 17 Petitioner Evaristo Jonathan Garcia respectfully moves this Court for an 18 extension of time of 60 days, up to and including July 7, 2025, to file Petitioner’s 19 Reply. 20 This is Garcia’s first request to extend this deadline. This request for an 21 extension is made in good faith and not solely for the purpose of delay. Good cause 22 exists for the requested extension because of (1) the complex and voluminous record 23 in this case, (2) the need for newly assigned counsel to thoroughly review the 24 materials; and (3) counsel’s obligations with other matters. 25 Respondents do not oppose this request. Given the complexity of this case and 26 the procedural posture, this extension is necessary to ensure effective assistance of 27 counsel and allow for a comprehensive Reply. 1 POINTS AND AUTHORITIES 2 I. Brief Procedural History 3 After a six-day jury trial that commenced on July 8, 2013, Evaristo Garcia was 4 found guilty of second-degree murder with use of a deadly weapon.1 He was sentenced 5 to two consecutive terms of ten years to life.2 6 On December 20, 2017, petitioner Evaristo Garcia filed a pro se petition for 7 writ of habeas corpus and moved for appointment of counsel.3 8 Nine days later, this court granted Mr. Garcia’s motion and appointed 9 counsel.4 The court ruled that appointment of counsel is in the interests of justice due 10 to, among other things, the following: 11 (1) petitioner’s lengthy sentencing consisting of two consecutive sentences of life with the possibility of parole 12 after a minimum of ten years on each sentence, on his conviction, following a jury trial, of second-degree murder 13 with the use of a deadly weapon; (2) the very limited ability 14 demonstrated by petitioner in articulating his claims in this and the prior action, with petitioner presenting more 15 or less bare documents covering copies of prior state court filings and/or orders; (3) the prospect that petitioner’s 16 access to Nevada specific legal materials and inmate 17 assistance while incarcerated in Arizona may be more limited than the resources that may have been available to 18 him while held within Nevada; and (4) the complexity of the potential procedural and substantive issues presented, 19 including those potentially arising with respect to Martinez 20 v.Ryan, 566 U.S. 1 (2012), following upon counsel not being appointed in the state post-conviction proceedings.5 21 22 23 24 1 ECF No. 36 2 Id. 25 3 ECF Nos. 1-1, 5. 26 4 ECF No. 4. 27 5 Id. at 1–2. 1 AFPD Megan Hoffman was appointed on April 5, 2018.6 On May 10, 2018, 2 AFPD S. Alex Spelman entered an appearance on behalf of Mr. Garcia.7 An amended 3 petition for writ of habeas corpus was filed on February 14, 2019.8 On February 25, 4 2019, this court entered an order sealing this case.9 On April 4, 2019, a stay was 5 entered to allow Mr. Garcia to exhaust his claims in Ground 1 in state court.10 6 Over five months later, AFPD Emma Smith entered her appearance as counsel 7 for Mr. Garcia,11 followed by AFPD Jeremy Baron on October 8, 201912 and AFPD 8 Amelia Bizzaro on October 9, 2020.13 On June 27, 2022, Ms. Bizzaro filed a second 9 Notice of Appearance.14 10 This case was reopened on September 23, 2022.15 A second amended petition 11 was filed on December 6, 2022.16 Respondents filed a motion to dismiss on May 22, 12 2023,17 along with exhibits totaling thousands of pages.18 13 I joined the Office of the Federal Public Defender in October 2024 and entered 14 my appearance in this matter on October 30, 2024.19 An Order denying Respondents’ 15 16 6 ECF No. 9. 17 7 ECF No. 10. 18 8 ECF No. 18. 19 9 ECF No. 22. 10 ECF No. 26. 20 11 ECF No. 27. 21 12 ECF No. 28. 22 13 ECF No. 29. 23 14 ECF No. 30. 24 15 ECF No. 33. 16 ECF No. 36. 25 17 ECF No. 42. 26 18 ECF Nos. 43 – 47. 27 19 ECF No. 66. 1 motion to dismiss in part was entered on the same date.20 Respondents’ Answer to 2 the sealed second amended petition was filed on April 8, 2025.21 3 The record in this case is extensive and voluminous. It spans nearly 20 years 4 dating back to 2006, involves a lengthy pre-trial history, a 2013 six-day jury trial on 5 a murder charge, about four years of state appellate and post-conviction proceedings 6 thereafter, and an additional four years of proceedings following the commencement 7 of this matter and the return to state court. Plus, as this court noted, the potential 8 procedural issues in this case are complex, given Mr. Garcia’s lack of representation 9 for his state habeas proceedings. 22 10 The additional period of time is necessary in order to effectively represent Mr. 11 Garcia. This motion is filed in the interests of justice and not for the purposes of 12 unnecessary delay. 13 II. Good Cause Exists for the Requested Extension 14 Under Rule 6 of the Federal Rules of Civil Procedure, courts have broad 15 discretion to grant extensions of time upon a showing of good cause.23 Rule 6 is to be 16 liberally construed to facilitate resolution of cases on the merits.24 17 The attorney that had been working on this case, Ms. Bizzaro, took the case 18 through the state court proceedings. She led the litigation in both state post- 19 conviction and federal habeas proceedings up to my appearance in October 2024. I 20 am the sixth AFPD assigned to this case. I did not draft any of the prior pleadings 21 and did not participate in the litigation leading up to this point. 22 23 20 ECF No. 67. 24 21 ECF No. 74 25 22 See ECF No. 4 at 1–2. 26 23 Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996). 27 24 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). 1 An extension of time is necessary so that I can review the voluminous file and 2 procedural history of this case. I have not conducted that review due to obligations in 3 other matters and the continuing demands of transitioning into habeas practice and 4 managing a full caseload. Preparing a Reply requires extensive research into 5 procedural default doctrines, the Brady violation claim, and a Martinez argument, 6 and this case has a complex procedural history spanning multiple courts and 7 thousands of pages of records. 8 Notably, my other commitments were time consuming and required significant 9 engagement. I was responsible for completing and filing an Amended Petition in 10 Cotton v. Gittere, et al., Case No. 3:23-cv-00570-MMD-CSD which was due and filed 11 on April 14, 2025. In addition, I presented oral argument in Keller v. Garrett, et al., 12 No. 3:22-cv-00481-ART-CLB, on April 22, 2025, a case that took significant 13 preparation because I had not drafted any of the briefs and, having recently joint the 14 Office of the Federal Public Defender, was not familiar with the case. I had an 15 opposition to a motion to dismiss due on April 4, 2025 in Chaiyakul v. Warden of High 16 Desert State Prison, et al., Case No. 2:22-cv-01650-RFB-MDC, as well as a Certificate 17 of Appealability due on April 23, 2025 in the matter of Garcia vs. Gittere, Case No. 18 2:17-cv-03095-JCM-CWH. 19 I have responses to six (6) separate sets of Interrogatories and Requests for 20 Production of Documents propounded in the matter of Harris v. Cooke, et al., Case 21 No. 3:22-cv-00019-ART-CSD, due on May 14, 2025; an Opposition to a Motion to 22 Dismiss due on May 16, 2025 in the matter of Benavides v. Williams, et al., Case No. 23 2:23-cv-00576-ART-MDC; and an Amended Petition due on May 23, 2025 in the 24 matter of Crawley v. Breitenbach, et al., Case No. Case No. 3:24-cv-00252-ART-CLB. 25 I have an Opposition to a Motion to Dismiss currently due on June 6, 2025 in 26 the matter Christy v. Hutchins, et al., Case No. 2:21-cv-00132-APG-BNW. Plus, I am 27 also in the process of preparing for an Evidentiary Hearing on June 13, 2025 in the 1|| matter of Taylor v. Bean, et al., Case No. 2:21-cev-00948-ART-DJA. 2 I have an Amended Petition due on June 18, 2025 in the matter of Engle v. 3|| State, et al., Case No. 3:24-cv-00257-MMD-CSD, and a Reply due on June 27, 2025 in the matter of Holman v. Johnson, et al., Case No. 2:21-cev-00266-APG-NJK. I have an 5| | Amended Petition due on July 8, 2025 in the matter of Raspperry v. Bean, et al., Case 6| | No. 2:25-cv-00110-RFB-BNW. 7 Because of these overlapping deadlines and obligations, I have not yet been able to complete the research and analysis required to adequately prepare the Reply 9|| in this matter. I also intend to meet with Mr. Garcia prior to completing the Reply. 10 Given the scope of the record, the complexity of the legal questions raised, and 11] | the need for direct communication with Mr. Garcia, an initial unopposed extension of 60 days is necessary. 13 On May 7, 2025, Deputy Attorney General Brooke Georguson was contacted | via email and stated that she did not object to the extension. The lack of objection should not be construed as a waiver of any procedural defenses. 16 This motion is filed in the interests of justice and to protect Mr. Garcia’s rights, 17| | not for purposes of delay. Accordingly, Petitioner respectfully requests an extension 18] | of time of 60 days, up to and including July 7, 2025, to file Petitioner’s Reply. 19 Dated: May 7, 2025. 20 Respectfully submitted, 2] Rene L. Valladares Federal Public Defender 22 93 /s/ Andréal, Viera Andréa L. Vieira 24 Assistant Federal Public Defender IT IS SO ORDERED: 25 ’ © tg Mea 26 fo eee enited States District Judge 27 Dated: May 9, 2025