Kelsey v. Baker

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ZACHARY KELSEY, Case No. 3:18-cv-00174-MMD-CLB

7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 Petitioner Zachary Kelsey filed a petition for writ of habeas corpus under 28 U.S.C. 12 § 2254 on May 16, 2018. (ECF No. 6.) This Court denied Kelsey’s petition and a certificate 13 of appealability on August 22, 2019. (ECF No. 27.) Kelsey appealed on September 4, 14 2019, and the United States Court of Appeals for the Ninth Circuit granted a certificate of 15 appealability with respect to the following issue: whether Kelsey’s trial counsel provided 16 ineffective assistance, including whether his counsel was ineffective for (a) waiving 17 closing argument, or (b) failing to consult with or retain an expert regarding the victim’s 18 cause of death. (ECF Nos. 29, 31.) The United States Court of Appeals for the Ninth 19 Circuit thereafter granted Kelsey counsel, and Kimberly Sandberg of the Federal Public 20 Defender, District of Nevada appeared on March 16, 2020. (See ECF No. 32.) 21 Following the filing of his opening brief, Kelsey moved for a full remand because 22 important documents—namely, the deposition testimony of John Ohlson and an expert 23 report—from the state court record were not reviewed by this Court when it denied his 24 petition. The United States Court of Appeals for the Ninth Circuit granted the motion on 25 July 12, 2021, pursuant to Nasby v. McDaniel, 853 F.3d 1049, 1054 (9th Cir. 2017), and 26 remanded the case for further proceedings. Based on this order, this action needs to be 27 reopened. 28 It is therefore ordered that the Clerk of Court shall reopen this action. 1 It is further ordered that, within seven (7) days, Kimberly Sandberg shall file a 2 || notice of appearance. 3 It is further ordered that, within seven (7) days, the Respondents shall file the 4 || deposition testimony of John Ohlson and the expert report as supplemental exhibits. A 5 || hard copy (courtesy copy) of the exhibits shall not be provided. 6 It is further ordered that, within forty-five (45) days, Kelsey shall file supplemental 7 || briefing addressing the sole issue upon which the United States Court of Appeals for the 8 || Ninth Circuit granted a certificate of appealability: whether Kelsey's trial counsel provided 9 || ineffective assistance, including whether his counsel was ineffective for (a) waiving 10 || closing argument, or (b) failing to consult with or retain an expert regarding the victim’s 11 || cause of death. 12 It is further ordered that the Respondents shall respond to Kelsey’s briefing within 13 || forty-five (45) days after being served with that briefing. Kelsey may then file a reply within 14 || thirty (30) days of the response. 15 DATED THIS 15" Day of July 2021. 16 _— {GA 18 siiRAKG eC 49 CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28