Lavoll v. Howell

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 TERRANCE L. LAVOLL, Case No. 2:19-cv-02249-GMN-EJY

10 Petitioner, ORDER

11 v. 12 JERRY HOWELL, et al., 13 Respondents. 14

15 16 Petitioner Terrance L. Lavoll has submitted a 28 U.S.C. § 2254 habeas corpus 17 petition and has now paid the filing fee (ECF Nos. 1, 6). He also filed a response to this 18 court’s show-cause order regarding whether his petition is timely (ECF No. 8). The court 19 has reviewed the response and has reviewed the petition pursuant to Habeas Rule 4, 20 and the petition will be served on respondents. 21 A petition for federal habeas corpus should include all claims for relief of which 22 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 23 24 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 25 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 26 petition, he should notify the court of that as soon as possible, perhaps by means of a 27 motion to amend his petition to add the claim. IT IS THEREFORE ORDERED that the Clerk ELECTRONICALLY SERVE the 1 petition (ECF No. 1) on respondents. 2 3 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 4 General, as counsel for respondents. 5 IT IS FURTHER ORDERED that respondents must file a response to the petition, 6 including potentially by motion to dismiss, within 90 days of service of the petition, with 7 any requests for relief by petitioner by motion otherwise being subject to the normal 8 briefing schedule under the local rules. Any response filed is to comply with the 9 10 remaining provisions below, which are entered pursuant to Habeas Rule 5. 11 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 12 in this case be raised together in a single consolidated motion to dismiss. In other 13 words, the court does not wish to address any procedural defenses raised herein either 14 in seriatum fashion in multiple successive motions to dismiss or embedded in the 15 answer. Procedural defenses omitted from such motion to dismiss will be subject to 16 potential waiver. Respondents should not file a response in this case that consolidates 17 18 their procedural defenses, if any, with their response on the merits, except pursuant to 19 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 20 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will 21 do so within the single motion to dismiss not in the answer; and (b) they will specifically 22 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 23 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 24 defenses, including exhaustion, should be included with the merits in an answer. All 25 26 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 27 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 1 specifically cite to and address the applicable state court written decision and state 2 3 court record materials, if any, regarding each claim within the response as to that claim. 4 IT IS FURTHER ORDERED that petitioner has 45 days from service of the 5 answer, motion to dismiss, or other response to file a reply or opposition, with any other 6 requests for relief by respondents by motion otherwise being subject to the normal 7 briefing schedule under the local rules. 8 IT IS FURTHER ORDERED that any additional state court record exhibits filed 9 10 herein by either petitioner or respondents be filed with a separate index of exhibits 11 identifying the exhibits by number. The parties will identify filed CM/ECF attachments 12 by the number or numbers of the exhibits in the attachment. 13 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 14 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the 15 Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 16 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 17 18 outside of the mailing address label. No further courtesy copies are required unless 19 and until requested by the court. 20 DATED: 28 May 2020. 21

22 GLORIA M. NAVARRO 23 UNITED STATES DISTRICT JUDGE 24 25 26 27