McKnight v. Warden Baker

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DERRICK LAMAR MCKNIGHT, Case No. 3:17-cv-00681-MMD-CLB

7 Petitioner, ORDER v. 8 WARDEN BAKER, et al., 9 Respondents. 10 11 Petitioner has filed a counseled amended petition for a writ of habeas corpus. (ECF 12 No. 48.) Respondents will need to respond to it. 13 It is therefore ordered that Respondents must file a response to the amended 14 petition, including potentially by motion to dismiss, within 60 days of entry of this order and 15 that Petitioner may file a reply within 30 days of service of an answer. The response and 16 reply time to any motion filed by either party, including a motion filed in lieu of a pleading, 17 will be governed instead by Local Rule LR 7-2(b). 18 It is further ordered that any procedural defenses raised by Respondents to the 19 petition must be raised together in a single consolidated motion to dismiss. In other words, 20 the Court does not wish to address any procedural defenses raised herein either in serial 21 fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 22 defenses omitted from such motion to dismiss will be subject to potential waiver. 23 Respondents must not file a response in this case that consolidates their procedural 24 defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. 25 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents do seek 26 dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within the single 27 motion to dismiss not in the answer; and (b) they must specifically direct their argument to 28 the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 1 || 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, may be 2 || included with the merits in an answer. All procedural defenses, including exhaustion, 3 || instead must be raised by motion to dismiss. 4 It is further ordered that, in any answer filed on the merits, Respondents must 5 || specifically cite to and address the applicable state court written decision and state court 6 || record materials, if any, regarding each claim within the response as to that claim. 7 DATED THIS 3% Day of May 2022.

9 □□ MIRANDA M. DU 10 CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28