Loya v. Garrett

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 OSCAR BENJAMIN LOYA, Case No. 3:22-cv-00309-LRH-CLB

6 Petitioner, v. ORDER 7 TIM GARRETT, et al., 8 Respondents. 9 10 Following the Notice of Appearance (ECF Nos. 23, 24) by the Federal Public Defender on 11 behalf of Petitioner Oscar Benjamin Loya, it is hereby ordered: 12 1. The Federal Public Defender, through Shelly Richter, Esq. and Jonathan 13 Kirshbaum, Esq., is appointed as counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). 14 Counsel will represent Petitioner in all federal proceedings related to this matter, including any 15 appeals or certiorari proceedings, unless allowed to withdraw. 16 2. Petitioner will have until January 2, 2024, to file an amended petition and/or seek 17 other appropriate relief. This deadline and any extension thereof may not be construed as implied 18 findings regarding the federal limitation period or a basis for tolling. Petitioner at all times remains 19 responsible for calculating the running of the federal limitation period and timely asserting claims, 20 without regard to any court-ordered deadlines or extensions. Thus, a petition or amended petition 21 filed within a court-ordered deadline may still be dismissed as untimely if it violates the statute of 22 limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 23 3. Respondents must file a response to the amended petition, including potentially by 24 motion to dismiss, within 60 days of service of an amended petition. Petitioner may file a reply 25 within 30 days of service of the answer. However, Local Rule LR 7-2(b) governs the response and 26 reply time to any motion filed by either party, including motions filed in lieu of a pleading. 27 4. Any procedural defenses Respondents raise to the counseled amended petition must 28 be raised together in a single, consolidated motion to dismiss. Successive motions to dismiss will 1 || not be entertained, and any procedural defenses omitted from the consolidated motion to dismiss 2 || will be waived. Respondents may not file a response that consolidates their procedural defenses, 3 || if any, with their response on the merits. But arguments that an unexhausted claim clearly lacks 4 || merit may be included a procedural-defense response. If Respondents seek dismissal of 5 || unexhausted claims under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to 6 || dismiss, not in the answer; and (2) specifically direct their argument to the standard for dismissal 7 || under § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In 8 || short, no procedural defenses, including exhaustion, may be included with the merits in an answer. 9 || All procedural defenses, including exhaustion, must be raised in a single motion to dismiss. 10 5. In any answer filed on the merits, Respondents must specifically cite to and address 11 || the applicable state court written decision and state court record materials, if any, regarding each 12 || claim within the response as to that claim. 13 6. Respondents must file the state court exhibits relevant to their response in 14 || chronological order. 15 7. All state court records and related exhibits must be filed in accordance with LR IA 16 || 10-3 and LR IC 2-2 and include a separate index identifying each exhibit by number or letter. The 17 || index must be filed in CM/ECF’s document upload screen as the base document to receive the 18 || base docket number (e.g., ECF No. 10). Each exhibit must then be filed as “attachments” to the 19 || base document to receive a sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit 20 || B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more than 21 || one filing, the base document in each successive filing must be either a copy of the index or volume 22 || cover page. See LR IC 2-2(a)(3)(A). 23 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits 24 || need not be provided to chambers or to the staff attorney, unless later directed by the court. 25 IT IS SO ORDERED. 26 DATED this 4™ day of October, 2023. . 27 LARRY R. HICKS 28 UNITED STATES DISTRICT JUDGE