Perez v. Attorney General of the State of Nevada

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 JOSEPH PEREZ, Case No. 2:18-cv-02077-KJD-VCF 12 Petitioner, ORDER 13 v. 14 ATTORNEY GENERAL OF THE STATE OF NEVADA, 15 Respondent. 16 17 Petitioner has filed an amended petition (ECF No. 14). The court has reviewed it pursuant 18 to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The 19 court will direct respondents to file a response. 20 IT THEREFORE IS ORDERED that respondents shall file a response to the amended 21 petition (ECF No. 14), including potentially by motion to dismiss, within forty-five (45) days 22 from the date of entry of this order and that petitioner may file a reply within thirty (30) days of 23 service of an answer. The response and reply time to any motion filed by either party, including a 24 motion filed in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b). 25 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 26 counseled amended petition shall be raised together in a single consolidated motion to dismiss. In 27 other words, the court does not wish to address any procedural defenses raised herein either in 28 serial fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 1 | defenses omitted from such motion to dismiss will be subject to potential waiver. Respondents 2 | shall not file a response in this case that consolidates their procedural defenses, if any, with their 3 || response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims 4 | clearly lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): 5 | (a) they shall do so within the single motion to dismiss not in the answer; and (b) they shall 6 | specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 7 | Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 8 || including exhaustion, shall be included with the merits in an answer. All procedural defenses, 9 | including exhaustion, instead must be raised by motion to dismiss. 10 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 11 || specifically cite to and address the applicable state court written decision and state court record 12 | materials, if any, regarding each claim within the response as to that claim. 13 DATED: Abril 7, 2020 ! | | \> 14 © KENT J. DAWSON 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28