Moore v. Howell

Opinion

8 * * *

9 JAMES LAMONT MOORE, Case No. 2:19-cv-02110-KJD-DJA

10 Petitioner, ORDER v. 11 JERRY HOWELL, et al., 12 Respondents. 13 14 Petitioner James Lamont Moore has submitted a pro se petition for writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254. He has responded to this court’s show- 16 cause order (see ECF No. 7). The court has reviewed the petition pursuant to Habeas 17 Rule 4, and respondents shall file a response. 18 A petition for federal habeas corpus should include all claims for relief of which 19 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 20 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 21 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 22 petition, he should notify the court of that as soon as possible, perhaps by means of a 23 motion to amend his petition to add the claim. 24 IT IS THEREFORE ORDERED that respondents shall file a response to the 25 petition, including potentially by motion to dismiss, within ninety (90) days of service of 26 the petition, with any requests for relief by petitioner by motion otherwise being subject 27 to the normal briefing schedule under the local rules. Any response filed shall comply with the remaining provisions below, which are entered pursuant to Habeas Rule 5. 1 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 2 in this case shall be raised together in a single consolidated motion to dismiss. In other 3 words, the court does not wish to address any procedural defenses raised herein either 4 in seriatum fashion in multiple successive motions to dismiss or embedded in the 5 answer. Procedural defenses omitted from such motion to dismiss will be subject to 6 potential waiver. Respondents shall not file a response in this case that consolidates 7 their procedural defenses, if any, with their response on the merits, except pursuant to 8 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 9 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall 10 do so within the single motion to dismiss not in the answer; and (b) they shall 11 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set 12 forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no 13 procedural defenses, including exhaustion, shall be included with the merits in an 14 answer. All procedural defenses, including exhaustion, instead must be raised by 15 motion to dismiss. 16 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 17 shall specifically cite to and address the applicable state court written decision and state 18 court record materials, if any, regarding each claim within the response as to that claim. 19 IT IS FURTHER ORDERED that petitioner shall have 45 days from service of 20 the answer, motion to dismiss, or other response to file a reply or opposition, with any 21 other requests for relief by respondents by motion otherwise being subject to the normal 22 briefing schedule under the local rules. 23 IT IS FURTHER ORDERED that any additional state court record exhibits filed 24 herein by either petitioner or respondents shall be filed with a separate index of exhibits 25 identifying the exhibits by number. The CM/ECF attachments that are filed further shall 26 be identified by the number of the exhibit in the attachment. 27 ' IT IS FURTHER ORDERED that the parties SHALL SEND courtesy copies of all 2 pleadings and indices of exhibits only in this case to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the attention of “Staff Attorney” on the outside of the 4 mailing address label. Additionally, in the future, all parties shall provide courtesy copies 5 of any additional exhibits submitted to the court in this case, in the manner described 8 above. IT IS FURTHER ORDERED that the Clerk shall file petitioner's motion for 8 appointment of counsel (ECF No. 1-3). 9 IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel "0 (ECF No. 1-3) is DENIED. 11 12 13 DATED: 18 March 2020. LAC? 14 yo 6 UNITED STATES DISTRICT JUDGE

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