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

12 DATED: 20 March 2020. 13

UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27