Nicholson v. Baker

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 RICHARD NICHOLSON, Case No. 3:16-cv-00486-MMD-WGC

7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 Before the Court is Petitioner Richard Nicholson’s Motion to Reopen Case. (ECF 12 No. 59.) 13 On May 26, 2020, the Court administratively closed this action while Petitioner 14 exhausted his unexhausted claims in state court. (ECF No. 58.) Petitioner has completed 15 his state court proceedings and now moves to re-open these federal habeas proceedings. 16 (ECF No. 59.) Respondents did not oppose this motion and the deadline to do so expired 17 without request for extension. 18 Petitioner represents that the claim raised in state court is already included in his 19 Amended Petition (ECF No. 38) and does not need to be supplemented unless the Court 20 prefers one with updated procedural history and statement of exhaustion. 21 Accordingly, it is ordered that Petitioner’s motion to reopen case (ECF No. 59) is 22 granted. 23 It is further ordered that, as the stay is lifted by this Order, the Clerk of Court will 24 reopen the file in this action. 25 It is further ordered that Petitioner has until March 29, 2021, to file and serve a 26 second amended petition updating the procedural history and statement of exhaustion in 27 the Amended Petition. 28 It is further ordered that Respondents will have 60 days to answer, or otherwise 1 respond to, the Amended Petition for writ of habeas corpus in this case. 2 It is further ordered that Petitioner will have 60 days following service of the answer 3 to file and serve a reply brief. If a dispositive motion is filed, the parties will brief the motion 4 in accordance with Rules 7-2 and 7-3 of the Local Rules of Practice. 5 It is further ordered that any procedural defenses Respondents raise to the second 6 Amended Petition must be raised together in a single consolidated motion to dismiss. 7 Procedural defenses omitted from such motion to dismiss will be subject to potential 8 waiver. Respondents will not file a response in this case that consolidates their procedural 9 defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. 10 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents do seek 11 dismissal of unexhausted claims under § 2254(b)(2), they must do so within the single 12 motion to dismiss, not in the answer, and specifically direct their argument to the standard 13 for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th 14 Cir. 2005). In short, no procedural defenses, including exhaustion, will be included with 15 the merits in an answer. All procedural defenses, including exhaustion, instead must be 16 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 any additional state court record and related exhibits must 21 be filed in accordance with LR IA 10-3, LR IC 2-2, and LSR 3-3, and include a separate 22 index identifying each additional exhibit by number or letter. The index must be filed in 23 CM/ECF’s document upload screen as the base document to receive the base docket 24 number (ECF No. 10). Each exhibit will then be filed as “attachments” to the base 25 document—the index—to receive a sequenced sub-docket number (ECF Nos. 10-1; 10- 26 2; 10-3). If the exhibits will span more than one filing, the base document in each 27 successive filing must be either a copy of the index or volume cover page. See LR IC 2- 28 2(a)(3)(A). 1 Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits—for 2 || this case—need not be provided to chambers or to the staff attorney, unless later directed 3 || by the Court. 4 DATED THIS 15" Day of March 2021. □ LT 6 MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28