Randolph v. Baker

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 ROGER RANDOLPH, Case No. 2:18-cv-00449-RFB-VCF

10 Petitioner, ORDER v. 11 RENEE BAKER, et al., 12 Respondents. 13 14 This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 On June 11, 2019, this court granted a stay and administratively closed petitioner 16 Roger Randolph’s federal habeas corpus action while he litigated his state petition (ECF 17 No. 29). 18 Randolph’s further state-court proceedings have concluded, and he has now 19 returned to this court seeking to reopen this case (ECF No. 30). He also seeks a 20 scheduling order for a response to his second-amended petition. Good cause appearing, 21 this action is reopened. 22 IT IS THEREFORE ORDERED that petitioner’s motion to reopen this action (ECF 23 No. 30) is GRANTED. 24 IT IS FURTHER ORDERED that, as the stay is lifted by this order, the Clerk is 25 directed to REOPEN THE FILE in this action. 26 IT IS FURTHER ORDERED that respondents file a response to the second- 27 amended petition, including potentially by motion to dismiss, within 90 days of service of the amended petition, with any requests for relief by petitioner by motion otherwise being 1 subject to the normal briefing schedule under the local rules. Any response filed should 2 comply with the remaining provisions below, which are entered pursuant to Habeas Rule 3 5. 4 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 5 in this case be raised together in a single consolidated motion to dismiss. In other words, 6 the court does not wish to address any procedural defenses raised herein either in 7 seriatum fashion in multiple successive motions to dismiss or embedded in the answer. 8 Procedural defenses omitted from such motion to dismiss will be subject to potential 9 waiver. Respondents should not file a response in this case that consolidates their 10 procedural defenses, if any, with their response on the merits, except pursuant to 28 11 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents 12 do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they should do so within 13 the single motion to dismiss not in the answer; and (b) they should specifically direct their 14 argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 15 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 16 exhaustion, should be included with the merits in an answer. All procedural defenses, 17 including exhaustion, instead must be raised by motion to dismiss. 18 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 19 specifically cite to and address the applicable state court written decision and state court 20 record materials, if any, regarding each claim within the response as to that claim. 21 IT IS FURTHER ORDERED that petitioner has 45 days from service of the answer, 22 motion to dismiss, or other response to file a reply or opposition, with any other requests 23 for relief by respondents by motion otherwise being subject to the normal briefing 24 schedule under the local rules. 25 IT IS FURTHER ORDERED that any additional state court record exhibits filed 26 herein by either petitioner or respondents be filed with a separate index of exhibits 27 ' identifying the exhibits by number. The CM/ECF attachments that are filed further should 2 be identified by the number of the exhibit in the attachment. 3 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of ‘ any responsive pleading or motion and INDICES OF EXHIBITS ONLY to the Reno ° Division of this court. Courtesy copies are to be mailed to the Clerk of Court, 400 S. 6 Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing address label. No further courtesy copies are required unless and 8 until requested by the court. . DATED: 9 April 2021.

12 RICHARD II 13 UNITED STA DISTRICT JUDGE

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