Lavoll v. Howell

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 TERRANCE L. LAVOLL, Case No. 2:19-cv-01845-KJD-DJA

10 Petitioner, ORDER v. 11 JERRY HOWELL, et al., 12 Respondents. 13 Petitioner Terrance L. Lavoll has submitted a 28 U.S.C. § 2254 habeas corpus 14 petition. (ECF No. 1-1.) He has now filed a response to this court’s show-cause order 15 16 regarding whether his petition is timely. (ECF No. 7.) The court has reviewed the 17 response and has reviewed the petition pursuant to Habeas Rule 4, and the petition will 18 be served on respondents. 19 A petition for federal habeas corpus should include all claims for relief of which 20 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 21 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 22 §2244(b) (successive petitions). If petitioner is aware of any claim not included in his 23 24 petition, he should notify the court of that as soon as possible, perhaps by means of a 25 motion to amend his petition to add the claim. 26 IT IS THEREFORE ORDERED that the Clerk file and ELECTRONICALLY 27 SERVE the petition (ECF No. 1-1) on respondents. 1 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 2 General, as counsel for respondents and provide respondents an electronic copy of all 3 items previously filed in this case by regenerating the Notice of Electronic Filing to the 4 office of the AG only. 5 IT IS FURTHER ORDERED that respondents must file a response to the petition, 6 7 including potentially by motion to dismiss, within 90 days of service of the petition, with 8 any requests for relief by petitioner by motion otherwise being subject to the normal 9 briefing schedule under the local rules. Any response filed is to comply with the 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 15 in seriatum fashion in multiple successive motions to dismiss or embedded in the 16 answer. Procedural defenses omitted from such motion to dismiss will be subject to 17 potential waiver. Respondents should not file a response in this case that consolidates 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 23 direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 24 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 25 defenses, including exhaustion, should be included with the merits in an answer. All 26 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 27 1 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 2 specifically cite to and address the applicable state court written decision and state 3 court record materials, if any, regarding each claim within the response as to that claim. IT IS FURTHER ORDERED that petitioner has 45 days from service of the

6 answer, motion to dismiss, or other response to file a reply or opposition, with any other 7|| requests for relief by respondents by motion otherwise being subject to the normal 8|| briefing schedule under the local rules. 9 IT IS FURTHER ORDERED that any additional state court record exhibits filed 10 herein by either petitioner or respondents be filed with a separate index of exhibits " identifying the exhibits by number. The parties will identify filed CM/ECF attachments by the number or numbers of the exhibits in the attachment.

44 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 45|| any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the Reno Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 17|| s. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 18 outside of the mailing address label. No further courtesy copies are required unless and until requested by the court. 20 21 22 DATED: 28 September 2022. LACS 24 S—™> KENT J. DAWSON 25 UNITED STATES DISTRICT JUDGE 26 27 28