Quintana v. State of Nevada

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA 5 ***

6 NESTOR QUINTANA, Case No. 2:22-cv-00947-MMD-NJK

7 Petitioner, ORDER v. 8

9 STATE OF NEVADA, et al., Respondents. 10 11 In this habeas corpus action, the Court appointed counsel for Petitioner Nestor 12 Quintana. (ECF No. 6.) The Federal Public Defender for the District of Nevada appeared 13 on Quintana’s behalf on August 26, 2022. (ECF No. 9.) Respondents have also appeared. 14 (ECF No. 8.) It is therefore ordered that the following will govern further proceedings in 15 this action. 16 If necessary, Quintana must file an amended petition for writ of habeas corpus 17 within 60 days after entry of this Order. The amended petition must specifically state 18 whether each ground for relief has been exhausted in state court. For each claim that has 19 been exhausted in state court, the amended petition must state how, when, and where 20 the claim was exhausted. If Quintana determines an amended petition need not be filed, 21 then, within 60 days after entry of this Order, Quintana must file a notice to that effect. 22 Respondents will have 60 days following the filing of the amended petition to file 23 an answer or other response to the amended petition. If Quintana does not file an 24 amended petition, Respondents will have 60 days following the due date for the amended 25 petition to file an answer or other response to the original petition. In any answer filed on 26 the merits, Respondents will specifically cite to and address the applicable state court 27 written decision and state court record materials, if any, regarding each claim within the 1 Quintana will have 45 days following the filing of an answer to file a reply. 2 Respondents will thereafter have 30 days following the filing of a reply to file a response 3 to the reply. 4 If Respondents file a motion to dismiss, Quintana will have 60 days following the 5 filing of the motion to dismiss to file a response to that motion. Respondents will thereafter 6 have 30 days following the filing of the response to file a reply. 7 If Quintana wishes to move for leave to conduct discovery, Quintana must file such 8 motion concurrently with, but separate from, the response to Respondents’ motion to 9 dismiss or the reply to Respondents’ answer. Any motion for leave to conduct discovery 10 filed by Quintana before that time may be considered premature and may be denied, 11 without prejudice, on that basis. Respondents must file a response to any such motion 12 concurrently with, but separate from, their reply in support of their motion to dismiss or 13 their response to Quintana’s reply. Thereafter, Quintana will have 20 days to file a reply 14 in support of the motion for leave to conduct discovery. 15 If Quintana wishes to request an evidentiary hearing, Quintana must file a motion 16 for an evidentiary hearing concurrently with, but separate from, the response to 17 Respondents’ motion to dismiss or the reply to Respondents’ answer. Any motion for an 18 evidentiary hearing filed by Quintana before that time may be considered premature and 19 may be denied, without prejudice, on that basis. The motion for an evidentiary hearing 20 must specifically address why an evidentiary hearing is required and must meet the 21 requirements of 28 U.S.C. § 2254(e). The motion must state whether an evidentiary 22 hearing was held in state court and, if so, state where the transcript is located in the 23 record. If Quintana files a motion for an evidentiary hearing, Respondents must file a 24 response to that motion concurrently with, but separate from, their reply in support of their 25 motion to dismiss or their response to Quintana’s reply. Thereafter, Quintana will have 20 26 days to file a reply in support of the motion for an evidentiary hearing. 27 All procedural defenses raised by Respondents, including exhaustion, must be 28 1 || raised in a single consolidated motion to dismiss. | do not wish to address any procedural 2 || defenses in seriatim fashion in multiple successive motions to dismiss. Procedural 3 || defenses omitted from such motion to dismiss will be subject to potential waiver. 4 || Respondents may not file a response that consolidates their procedural defenses, if any, 5 || with their responses on the merits, except under 28 U.S.C § 2254(b)(2) as to any 6 || unexhausted claims clearly lacking merit. If Respondents seek dismissal of unexhausted 7 || claims under § 2254(b)(2) they must: (a) do so within the single motion to dismiss and not 8 || in the answer; and (b) specifically direct their argument to the standard for dismissal under 9 || § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 10 The parties must redact personal-data identifiers in all documents filed with the 11 || Court as required by LR IC 6-1. Any state court record and related exhibits must be filed 12 || in accordance with LR IA 10-3 and LR IC 2-2 and be filed with a separate index of exhibits 13 || identifying the exhibits by number. The index must be filed in CM/ECF’s document upload 14 || screen as the base document to receive the base docket number (e.g., ECF No. 10). 15 || Each exhibit must then be filed as “attachments” to the base document—/.e., the index— 16 || to receive a sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B 17 || (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more 18 || than one filing, the base document in each successive filing must be either a copy of the 19 || index or volume cover page. See LR IC 2-2(a)(3)(A). Paper copies of any exhibits over 20 || 50 pages—for this case—must be appropriately bound, tabbed, and delivered to the Las 21 || Vegas Clerk’s Office. See LR IA 10-3(i); LR IC 2-2(g). Courtesy copies must be addressed 22 || to the attention of “Staff Attorney” on the mailing address label. 23 DATED THIS 6" Day of September 2022. 24 ALA 26 □□□□□□□□□□□□□□□□□□□□□□ 57 CHIEF UNITED STATES DISTRICT JUDGE