5 JOHNNY A. MARQUEZ, Case No. 3:20-cv-00073-RCJ-WGC
6 Petitioner, v. ORDER 7 DWIGHT NEVEN, WARDEN, et al., 8 Respondents. 9 10 Petitioner Johnny A. Marquez, a Nevada prisoner, commenced this habeas action by filing 11 a Petition for Writ of Habeas Corpus (ECF No. 5). The Court granted him pauper status and 12 provisionally appointed counsel. (ECF No. 4.) Following the Notice of Appearance (ECF No. 7) 13 by the Federal Public Defender on behalf of Marquez, this habeas matter is before the Court for 14 initial review under the Rules Governing Section 2254 Cases,1 and for consideration of Marquez’s 15 Motions to File First Amended Petition and for Scheduling Order (ECF Nos. 8–9). For the reasons 16 discussed below, the Court grants the motions and sets a briefing schedule. 18 Marquez challenges a conviction and sentence imposed by the Eighth Judicial District 19 Court for Clark County (“state court”). State v. Marquez, Case No. 09C251342.2 Following a 20 five-day trial, a jury found Marquez guilty of three counts of sexual assault of a minor under 14 21 years of age and three counts of lewdness with a minor under 14 years of age. On July 18, 2011, 22 the state court entered a judgment of conviction sentencing Marquez to six life sentences with 23 parole eligibility in 40 years. Marquez filed a direct appeal. The Nevada Supreme Court affirmed 24
25 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 2254 Cases in the United States District Courts. 26 2 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and 27 Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 28 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 Marquez’s conviction on March 28, 2013. 2 On March 13, 2014, Marquez filed a state petition for writ of habeas corpus (“state 3 petition”) seeking post-conviction relief. Following an evidentiary hearing, the state petition was 4 denied. Marquez filed a post-conviction appeal. The Nevada Supreme Court affirmed the denial 5 of relief, and a remittitur issued on February 18, 2020. 6 Marquez mailed his federal petition, or handed it to a correctional officer for the purpose 7 of mailing, on January 31, 2020. (ECF No. 1-1 at 1, 9.) He also requested the appointment of 8 counsel. (ECF No. 1-2.) The Court provisionally appointed the Federal Public Defender as 9 counsel and noted that a deadline would be set approximately 90 days from entry of the formal 10 order of appointment for the filing of an amended petition and/or seeking other relief. (ECF No. 4.) 13 Although a scheduling order has yet to be entered, out of an abundance of caution, 14 Marquez’s motions seek leave to promptly file a protective first amended petition to ensure all the 15 claims he previously raised in state court have been adequately presented to this Court. The 16 proposed first amended petition is compiled nearly verbatim from Marquez’s appellate briefs in 17 his direct and post-conviction appeals. He therefore requests that the forthcoming scheduling order 18 allow him to file a second amended petition that will reflect counsel’s thorough review, 19 investigation, and research regarding this case. 20 The motions essentially ask to pursue the two-step amendment procedure this Court has 21 expressly authorized in prior cases. See, e.g., McMahon v. Neven, No. 2:14-cv-00076-APG-CWH, 22 ECF No. 29 (D. Nev., May 29, 2014) (explaining the Court’s rationale in allowing a bifurcated 23 amendment procedure in habeas cases where the limitation period potentially may expire before 24 federal habeas counsel would be able to conduct a complete investigation). The Court finds good 25 cause to allow Marquez to utilize the two-step procedure here. 27 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 28 a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 1 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 2 petitions that are patently frivolous, vague, conclusory, palpably incredible, false, or plagued by 3 procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. 4 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 5 Because Marquez has been granted leave to amend, the Court screened the first amended 6 petition rather than the original pro se petition. Marquez alleges eight claims for relief under the 7 United States Constitution. Having conducted an initial review, the Court will set a schedule for 8 Marquez to file a second amended petition and direct a response. 9 IT IS THEREFORE ORDERED: 10 1. The Federal Public Defender, through Jeremy C. Baron, Esq., is formally appointed as 11 counsel for Petitioner Johnny A. Marquez pursuant to 18 U.S.C. § 3006A(a)(2)(B). 12 Counsel will represent Marquez in all federal proceedings related to this matter, 13 including any appeals or certiorari proceedings, unless allowed to withdraw. 14 2. Marquez’s Motion to File First Amended Petition (ECF No. 8) and Motion for 15 Scheduling Order (ECF No. 9) are GRANTED. 16 3. The Clerk of Court is directed to FILE the first amended petition (ECF No. 8-1). 17 4. Marquez will have until 90 days from entry of this order to file a second amended 18 petition and/or seek other appropriate relief. This deadline and any extension thereof 19 may not be construed as implied findings regarding the federal limitation period or a 20 basis for tolling. Marquez at all times remains responsible for calculating the running 21 of the federal limitation period and timely asserting claims, without regard to any court- 22 ordered deadlines or extensions. Thus, a petition or amended petition filed within a 23 court-ordered deadline may still be dismissed as untimely if it violates the statute of 24 limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 25 5. Respondents are not required to respond to the first amended petition at this time: 26 a. If Marquez choses to file a second amended petition, Respondents must file a 27 response within 60 days of service of a second amended petition; or 28 b. If Marquez chooses not to file a second amended petition, Respondents must, 1 within 60 days of the expiration of the time to do so, file a response to the first 2 amended petition. 3 6. Marquez may file a reply within 30 days of service. The response and reply time to 4 any motion filed by either party, including a motion filed in lieu of a pleading, will be 5 governed instead by the local rules. 6 7. Any procedural defenses Respondents raise to the counseled amended petition must be 7 raised together in a single, consolidated motion to dismiss. Successive motions to 8 dismiss will not be entertained, and any procedural defenses omitted from the 9 consolidated motion to dismiss will be waived. Respondents may not file a response 10 that consolidates their procedural defenses, if any, with their response on the merits. 11 But arguments that an unexhausted claim clearly lacks merit may be included a 12 procedural-defense response. If Respondents do seek dismissal of unexhausted claims 13 under 28 U.S.C. § 2254
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5 JOHNNY A. MARQUEZ, Case No. 3:20-cv-00073-RCJ-WGC
6 Petitioner, v. ORDER 7 DWIGHT NEVEN, WARDEN, et al., 8 Respondents. 9 10 Petitioner Johnny A. Marquez, a Nevada prisoner, commenced this habeas action by filing 11 a Petition for Writ of Habeas Corpus (ECF No. 5). The Court granted him pauper status and 12 provisionally appointed counsel. (ECF No. 4.) Following the Notice of Appearance (ECF No. 7) 13 by the Federal Public Defender on behalf of Marquez, this habeas matter is before the Court for 14 initial review under the Rules Governing Section 2254 Cases,1 and for consideration of Marquez’s 15 Motions to File First Amended Petition and for Scheduling Order (ECF Nos. 8–9). For the reasons 16 discussed below, the Court grants the motions and sets a briefing schedule. 18 Marquez challenges a conviction and sentence imposed by the Eighth Judicial District 19 Court for Clark County (“state court”). State v. Marquez, Case No. 09C251342.2 Following a 20 five-day trial, a jury found Marquez guilty of three counts of sexual assault of a minor under 14 21 years of age and three counts of lewdness with a minor under 14 years of age. On July 18, 2011, 22 the state court entered a judgment of conviction sentencing Marquez to six life sentences with 23 parole eligibility in 40 years. Marquez filed a direct appeal. The Nevada Supreme Court affirmed 24
25 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 2254 Cases in the United States District Courts. 26 2 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and 27 Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 28 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 Marquez’s conviction on March 28, 2013. 2 On March 13, 2014, Marquez filed a state petition for writ of habeas corpus (“state 3 petition”) seeking post-conviction relief. Following an evidentiary hearing, the state petition was 4 denied. Marquez filed a post-conviction appeal. The Nevada Supreme Court affirmed the denial 5 of relief, and a remittitur issued on February 18, 2020. 6 Marquez mailed his federal petition, or handed it to a correctional officer for the purpose 7 of mailing, on January 31, 2020. (ECF No. 1-1 at 1, 9.) He also requested the appointment of 8 counsel. (ECF No. 1-2.) The Court provisionally appointed the Federal Public Defender as 9 counsel and noted that a deadline would be set approximately 90 days from entry of the formal 10 order of appointment for the filing of an amended petition and/or seeking other relief. (ECF No. 4.) 13 Although a scheduling order has yet to be entered, out of an abundance of caution, 14 Marquez’s motions seek leave to promptly file a protective first amended petition to ensure all the 15 claims he previously raised in state court have been adequately presented to this Court. The 16 proposed first amended petition is compiled nearly verbatim from Marquez’s appellate briefs in 17 his direct and post-conviction appeals. He therefore requests that the forthcoming scheduling order 18 allow him to file a second amended petition that will reflect counsel’s thorough review, 19 investigation, and research regarding this case. 20 The motions essentially ask to pursue the two-step amendment procedure this Court has 21 expressly authorized in prior cases. See, e.g., McMahon v. Neven, No. 2:14-cv-00076-APG-CWH, 22 ECF No. 29 (D. Nev., May 29, 2014) (explaining the Court’s rationale in allowing a bifurcated 23 amendment procedure in habeas cases where the limitation period potentially may expire before 24 federal habeas counsel would be able to conduct a complete investigation). The Court finds good 25 cause to allow Marquez to utilize the two-step procedure here. 27 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 28 a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 1 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 2 petitions that are patently frivolous, vague, conclusory, palpably incredible, false, or plagued by 3 procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. 4 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 5 Because Marquez has been granted leave to amend, the Court screened the first amended 6 petition rather than the original pro se petition. Marquez alleges eight claims for relief under the 7 United States Constitution. Having conducted an initial review, the Court will set a schedule for 8 Marquez to file a second amended petition and direct a response. 9 IT IS THEREFORE ORDERED: 10 1. The Federal Public Defender, through Jeremy C. Baron, Esq., is formally appointed as 11 counsel for Petitioner Johnny A. Marquez pursuant to 18 U.S.C. § 3006A(a)(2)(B). 12 Counsel will represent Marquez in all federal proceedings related to this matter, 13 including any appeals or certiorari proceedings, unless allowed to withdraw. 14 2. Marquez’s Motion to File First Amended Petition (ECF No. 8) and Motion for 15 Scheduling Order (ECF No. 9) are GRANTED. 16 3. The Clerk of Court is directed to FILE the first amended petition (ECF No. 8-1). 17 4. Marquez will have until 90 days from entry of this order to file a second amended 18 petition and/or seek other appropriate relief. This deadline and any extension thereof 19 may not be construed as implied findings regarding the federal limitation period or a 20 basis for tolling. Marquez at all times remains responsible for calculating the running 21 of the federal limitation period and timely asserting claims, without regard to any court- 22 ordered deadlines or extensions. Thus, a petition or amended petition filed within a 23 court-ordered deadline may still be dismissed as untimely if it violates the statute of 24 limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 25 5. Respondents are not required to respond to the first amended petition at this time: 26 a. If Marquez choses to file a second amended petition, Respondents must file a 27 response within 60 days of service of a second amended petition; or 28 b. If Marquez chooses not to file a second amended petition, Respondents must, 1 within 60 days of the expiration of the time to do so, file a response to the first 2 amended petition. 3 6. Marquez may file a reply within 30 days of service. The response and reply time to 4 any motion filed by either party, including a motion filed in lieu of a pleading, will be 5 governed instead by the local rules. 6 7. Any procedural defenses Respondents raise to the counseled amended petition must be 7 raised together in a single, consolidated motion to dismiss. Successive motions to 8 dismiss will not be entertained, and any procedural defenses omitted from the 9 consolidated motion to dismiss will be waived. Respondents may not file a response 10 that consolidates their procedural defenses, if any, with their response on the merits. 11 But arguments that an unexhausted claim clearly lacks merit may be included a 12 procedural-defense response. If Respondents do seek dismissal of unexhausted claims 13 under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to dismiss, not in 14 the answer; and (2) specifically direct their argument to the standard for dismissal under 15 § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). 16 In short, no procedural defenses, including exhaustion, may be included with the merits 17 in an answer. All procedural defenses, including exhaustion, must be raised in a single 18 motion to dismiss. 19 8. In any answer filed on the merits, Respondents must specifically cite to and address the 20 applicable state court written decision and state court record materials, if any, regarding 21 each claim within the response as to that claim. 22 9. Respondents must file the state court exhibits relevant to their response in 23 chronological order. 24 10. All state court records and related exhibits must be filed in accordance with LR IA 25 10-3 and LR IC 2-2 and include a separate index identifying each exhibit by number or 26 letter. The index must be filed in CM/ECF’s document upload screen as the base 27 document to receive the base docket number (e.g., ECF No. 10). Each exhibit must 28 then be filed as “attachments” to the base document to receive a sequenced sub-docket 1 number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF 2 No. 10-3), and so forth). If the exhibits will span more than one filing, the base 3 document in each successive filing must be either a copy of the index or volume cover 4 page. See LR IC 2-2(a)(3)(A). 5 11. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 6 not be provided to chambers or to the staff attorney, unless later directed by the court. 7 DATED this 28" day of July, 2020. 8 9 . ROBERT C. JONES 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28