Garza v. Hutchings

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 EDWARD GARZA, Case No. 2:18-cv-00995-GMN-BNW

7 Petitioner, v. ORDER 8 BRIAN WILLIAMS, et al., 9 Respondents. 10 11 Following the Notice of Appearance (ECF No. 34) by the Federal Public Defender, 12 IT IS ORDERED: 13 1. The Federal Public Defender, through Kimberly Sandberg, Esq., is appointed as 14 counsel for Petitioner Edward Garza pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel 15 will represent Garza in all federal proceedings related to this matter, including any 16 appeals or certiorari proceedings, unless allowed to withdraw. 17 2. Garza will have 90 days from entry of this order to file an amended petition and/or seek 18 other appropriate relief. Neither the foregoing deadline nor any extension thereof 19 signifies or will signify any implied finding as to the expiration of the federal limitation 20 period and/or of a basis for tolling during the time period established. Garza at all times 21 remains responsible for calculating the running of the federal limitation period and 22 timely asserting claims, without regard to any deadlines established or extensions 23 granted herein. That is, by setting a deadline to amend the petition and/or by granting 24 any extension thereof, the Court makes no finding or representation that the petition, 25 any amendments thereto, and/or any claims contained therein are not subject to 26 dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 27 1 3. Respondents must file a response to the amended petition, including potentially by 2 motion to dismiss, within 60 days of service of an amended petition, and Garza may 3 file a reply thereto within 30 days of service of the answer. The response and reply 4 time to any motion filed by either party, including a motion filed in lieu of a pleading, 5 will be governed instead by Local Rule LR 7-2(b). 6 4. Any procedural defenses Respondents raise to the counseled amended petition must be 7 raised together in a single consolidated motion to dismiss. Procedural defenses omitted 8 from such motion to dismiss will be subject to potential waiver. Respondents must not 9 file a response in this case that consolidates their procedural defenses, if any, with their 10 response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any 11 unexhausted claims clearly lacking merit. If respondents do seek dismissal of 12 unexhausted claims under § 2254(b)(2), they must do so within the single motion to 13 dismiss, not in the answer, and specifically direct their argument to the standard for 14 dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 15 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, will be 16 included with the merits in an answer. All procedural defenses, including exhaustion, 17 instead must be raised by motion to dismiss. 18 5. In any answer filed on the merits, Respondents must specifically cite to and address the 19 applicable state court written decision and state court record materials, if any, regarding 20 each claim within the response as to that claim. 21 6. All state court records and related exhibits must be filed in accordance with LR IA 10- 22 3 and LR IC 2-2 and include a separate index identifying each exhibit by number or 23 letter. The index must be filed in CM/ECF’s document upload screen as the base 24 document to receive the base docket number (e.g., ECF No. 10). Each exhibit must then 25 be filed as “attachments” to the base document—the index—to receive a sequenced 26 sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), 27 Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more than one filing, 1 the base document in each successive filing must be either a copy of the index or 2 volume cover page. See LR IC 2-2(a)(3)(A). 3 7. A paper copy of any exhibits over 50 pages—for this case—must be delivered to the 4 Las Vegas Clerk’s Office and addressed to the attention of “Staff Attorney.” Paper 5 copies must be (i) file-stamped copies, bearing the document number assigned by the 6 CM/ECF system, (ii) securely bound on the left side to display the document number, 7 and (iii) tabbed to display exhibit numbers or letters on the right side or bottom of the 8 copies. See LR IA 10-3(i); LR IC 2-2(g).

9 DATED: October 10, 2019

11 GLORIA M. NAVARRO 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27