Mahmoud v. Warden's of N.N.C.C.

Opinion

1 2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 MOHAMED ABDALLA MAHMOUD, Case No. 3:22-cv-00452-MMD-CLB

7 Petitioner, ORDER

8 v. 9 WARDEN’S OF N.N.C.C., et al., 10 Respondents. 11 12 On January 5, 2023, the Court granted 28 U.S.C. § 2254 habeas corpus petitioner 13 Mohamed Abdalla Mahmoud’s motion for appointment of counsel and appointed the 14 Federal Public Defender to represent Mahmoud in this action. (ECF No. 8.) On February 15 1, 2023, Kimberly Anne Sandberg and Shelly Richter of the Federal Public Defender’s 16 Office appeared as co-counsel on behalf of Mahmoud. (ECF Nos. 11, 12.) The Court now 17 sets a schedule for further proceedings in this action. 18 It is therefore ordered that counsel for Petitioner meet with Petitioner as soon as 19 reasonably possible, if counsel has not already done so, to: (a) review the procedures 20 applicable in cases under 28 U.S.C. § 2254; (b) discuss and explore with Petitioner, as 21 fully as possible, the potential grounds for habeas corpus relief in Petitioner’s case; and 22 (c) advise Petitioner that all possible grounds for habeas corpus relief must be raised at 23 this time in this action and that failure to do so will likely result in any omitted grounds 24 being barred from future review. 25 It is further ordered that Petitioner has 90 days from the date of this order to file 26 and serve on Respondents a second-amended petition for writ of habeas corpus. 27 It is further ordered that Respondents have 45 days after service of an amended 28 petition within which to answer, or otherwise respond to, the amended petition. Any 1 response filed should comply with the remaining provisions below, which are entered 2 under Habeas Rule 5. 3 It is further ordered that any procedural defenses raised by Respondents in this 4 case be raised together in a single consolidated motion to dismiss. In other words, the 5 Court does not wish to address any procedural defenses raised herein either in seriatum 6 fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 7 defenses omitted from such motion to dismiss will be subject to potential waiver. 8 Respondents should not file a response in this case that consolidates their procedural 9 defenses, if any, with their response on the merits, except under 28 U.S.C. § 2254(b)(2) 10 as to any unexhausted claims clearly lacking merit. If Respondents do seek dismissal of 11 unexhausted claims under § 2254(b)(2): (a) they should do so within the single motion to 12 dismiss not in the answer; and (b) they should specifically direct their argument to the 13 standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 14 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, should be 15 included with the merits in an answer. All procedural defenses, including exhaustion, 16 instead must be raised by motion to dismiss. 17 It is further ordered that, in any answer filed on the merits, Respondents must 18 specifically cite to and address the applicable state court written decision and state court 19 record materials, if any, regarding each claim within the response as to that claim. 20 It is further ordered that, when Respondents file an answer or other responsive 21 pleading, Petitioner will have 30 days after service of the answer or responsive pleading 22 to file and serve his response. 23 It is further ordered that any additional state court record exhibits filed herein by 24 either Petitioner or Respondents be filed with a separate index of exhibits identifying the 25 exhibits by number. The CM/ECF attachments that are filed also must be identified by the 26 number or numbers of the exhibits in the attachment. Each exhibit must be filed as a 27 separate attachment. 28 1 It is further ordered that, at this time, the parties send courtesy copies of any 2 || responsive pleading and all indices of exhibits only to the Reno Division of the Court. 3 || Courtesy copies are to be mailed to the Clerk of Court, 400 S. Virginia St., Reno, Nevada 4 || 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing 5 || address label. No further courtesy copies are required unless and until requested by the 6 || Court. 7 DATED THIS Day of February 2023.

9 □□□□□□□□□□□□□□□□□□□□□□ 10 CHIEF UNITED STATES DISTRICT JUDGE

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