Johnson v. Gittere

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ROBERT JOHNSON, Case No. 3:20-cv-00591-ART-CLB 4 Petitioner ORDER 5 v. 6 WILLIAM GITTERE, et al., Respondents 7

8 9 10 In this habeas corpus action, the Court appointed counsel for Petitioner, 11 Robert Johnson. (ECF No. 42.) The Federal Public Defender for the District of 12 Nevada appeared on Johnson’s behalf on September 9, 2022. (ECF No. 43.) 13 Respondents have also appeared. (ECF No. 8.) 14 It is therefore ordered that the following will govern further proceedings in 15 this action: 16 If necessary, Johnson must file an amended petition for writ of habeas 17 corpus within 60 days after entry of this Order. The amended petition must 18 specifically state whether each ground for relief has been exhausted in state 19 court. For each claim that has been exhausted in state court, the amended 20 petition must state how, when, and where, the claim was exhausted. If Johnson 21 determines an amended petition need not be filed, then, within 60 days after 22 entry of this Order, Johnson must file a notice to that effect. 23 1 Respondents will have 60 days following the filing of the amended petition 2 to file an answer or other response to the amended petition. If Johnson does not 3 file an amended petition, Respondents will have 60 days following the due date 4 for the amended petition to file an answer or other response to the original

5 petition. In any answer filed on the merits, Respondents shall specifically cite to 6 and address the applicable state court written decision and state court record 7 materials, if any, regarding each claim within the response to that claim. 8 Johnson will have 45 days following the filing of an answer to file a reply. 9 Respondents will thereafter have 30 days following the filing of a reply to file a 10 response to the reply. 11 If Respondents file a motion to dismiss, Johnson will have 60 days 12 following the filing of the motion to dismiss to file a response to that motion. 13 Respondents will thereafter have 30 days following the filing of the response to 14 file a reply. 15 If Johnson wishes to move for leave to conduct discovery, Johnson must 16 file such motion concurrently with, but separate from, the response to 17 Respondents’ motion to dismiss or the reply to Respondents’ answer. Any motion 18 for leave to conduct discovery filed by Johnson before that time may be 19 considered premature, and may be denied, without prejudice, on that basis. 20 Respondents must file a response to any such motion concurrently with, but 21 separate from, their reply in support of their motion to dismiss or their response 22 to Johnson’s reply. Thereafter, Johnson will have 20 days to file a reply in 23 support of the motion for leave to conduct discovery. 1 If Johnson wishes to request an evidentiary hearing, Johnson must file a 2 motion for an evidentiary hearing concurrently with, but separate from, the 3 response to Respondents’ motion to dismiss or the reply to Respondents’ answer. 4 Any motion for an evidentiary hearing filed by Johnson before that time may be

5 considered premature, and may be denied, without prejudice, on that basis. The 6 motion for an evidentiary hearing must specifically address why an evidentiary 7 hearing is required and must meet the requirements of 28 U.S.C. § 2254(e). The 8 motion must state whether an evidentiary hearing was held in state court, and, 9 if so, state where the transcript is located in the record. If Johnson files a motion 10 for an evidentiary hearing, Respondents must file a response to that motion 11 concurrently with, but separate from, their reply in support of their motion to 12 dismiss or their response to Johnson’s reply. Thereafter, Johnson will have 20 13 days to file a reply in support of the motion for an evidentiary hearing. 14 All procedural defenses raised by Respondents, including exhaustion, 15 must be raised in a single consolidated motion to dismiss. I do not wish to 16 address any procedural defenses in seriatim fashion in multiple successive 17 motions to dismiss. Procedural defenses omitted from such motion to dismiss 18 will be subject to potential waiver. Respondents shall not file a response that 19 consolidates their procedural defenses, if any, with their responses on the merits, 20 except under 28 U.S.C § 2254(b)(2) as to any unexhausted claims clearly lacking 21 merit. If Respondents seek dismissal of unexhausted claims under § 2254(b)(2) 22 they must: (a) do so within the single motion to dismiss and not in the answer; 23 (b) specifically direct their argument to the standard for dismissal under § 2||2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 3 The parties must redact personal-data identifiers in all documents filed 4! with the Court as required by LRIC 6. Any state court record and related exhibits must be filed in accordance with LR IA 10-3 and LR IC 2-2 and be filed with a 6 separate index of exhibits identifying the exhibits by number. The index must be filed in CM /ECF’s document upload screen as the base document to receive the docket number (e.g., ECF No. 10). Each exhibit must then be filed as ”\|“attachments” to the base document—i.e., the index—to receive a sequenced 10 sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more than one filing, the base document in each successive filing must be either a copy of the 13 index or volume cover page. See LR IC 2-2(a)(3)(A). Paper copies of any exhibits over 50 pages—for this case—must be appropriately bound, tabbed, and delivered to the Reno Clerk’s office. See LR IA 10-3(i); LR IC 2-2(g). Courtesy copies must be addressed to the attention of “Staff Attorney” on the mailing address label. 8 DATED THIS 12t: day of September 2022 een 19 An wn jlossd / 20 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 21 22 23