Johns v. Russell

Opinion

4 Casey Alan Johns, Case No. 2:23-cv-00870-CDS-VCF 5 Petitioner 6 Scheduling Order 7 Perry Russell, et al., 8 Respondents 10 On July 26, 2023, I granted petitioner Casey Alan Johns’s motion for appointment of 1 || counsel and gave the Federal Public Defender 30 days to (1) undertake direct representation of 17 || Petitioner by filing a notice of appearance or (2) indicate the office’s inability to represent 13 |] Petitioner in these proceedings. ECF No. 7. On August 24, 2023, the Federal Public Defender 4 filed a notice of appearance. ECF No. 10. 5 IT IS THEREFORE ORDERED that the Federal Public Defender, through Johnathan M. 16 Kirshbaum, Esq., is appointed as counsel for petitioner Casey Alan Johns pursuant to 18 U.S.C. $ 7 3006A(a)(2)(B). Counsel will represent petitioner in all federal proceedings related to this 1g || matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 19 IT IS FURTHER ORDERED that petitioner shall have up to and including 90 days from 39 || entry of this order within which to file an amended petition and/or seek other appropriate 5] relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any 0 implied finding as to the expiration of the federal limitation period and/or of a basis for tolling 33 during the time period established. Petitioner remains responsible for calculating the running of 74 the federal limitation period and timely asserting claims, without regard to any deadlines 55 established or extensions granted herein. That is, by setting a deadline to amend the petition 6 and/or by granting any extension thereof, the court makes no finding or representation that the 57 || Petition, any amendments thereto, and/or any claims contained therein are not subject to 58 dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

1 IT IS FURTHER ORDERED that respondents shall file a response to the amended 2 || petition, including potentially by motion to dismiss, within 60 days of service of an amended 3 || petition and that petitioner may file a reply thereto within 30 days of service of the answer. The 4 || response and reply time to any motion filed by either party, including a motion filed in lieu of a 5 || pleading, shall be governed instead by Local Rule LR 7-2(b). 6 IT IS FURTHER ORDERED that any procedural defenses raised by respondents to the 7 || counseled amended petition shall be raised together in a single consolidated motion to 8 || dismiss. In other words, I do not wish to address any procedural defenses raised herein either in 9 || seriatum fashion in multiple successive motions to dismiss or embedded in the 10 || answer. Procedural defenses omitted from such motion to dismiss will be subject to potential || waiver. Respondents shall not file a response in this case that consolidates their procedural 12 || defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as 13 || to any unexhausted claims clearly lacking merit. If respondents do seek dismissal of 14 || unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to dismiss 15 || not in the answer; and (b) they shall specifically direct their argument to the standard for 16 || dismissal under $ 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 17 || 2005). In short, no procedural defenses, including exhaustion, shall be included with the merits 18 || in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to 19 || dismiss. 20 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents shall 21 || specifically cite to and address the applicable state court written decision and state court record 22 || materials, if any, regarding each claim within the response as to that claim. 23 IT IS FURTHER ORDERED that any state court record and related exhibits filed herein 24 || by either petitioner or respondents shall be filed with a separate index of exhibits identifying 25 || the exhibits by number. The CM/ECF attachments that are filed further shall be identified by 26 || the number or numbers of the exhibits in the attachment. If the exhibits filed will span more 27 || than one ECF number in the record, the first document under each successive ECF number shall 28 || be either another copy of the index, a volume cover page, or some other document serving as a

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] || filler, so that each exhibit under the ECF number thereafter will be listed under an attachment 2 |} number (ie., attachment 1, 2, etc.). 3 IT IS FURTHER ORDERED that courtesy copies of exhibits shall not be provided. 4 DATED: August 25, 2023 /) iy 6 EL UNITEL DISTRICT JUDGE 9 10 ll 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28