Reyes-Rodriguez v. Royal

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 Case No. 3:25-cv-00184-MMD-CLB

6 NABOR REYES-RODRIGUEZ, ORDER

7 Petitioner, v. 8 TERRY ROYAL, et al., 9 Respondents. 10 11 Following the Notice of Appearance (ECF No. 8) by the Federal Public Defender 12 on behalf of Petitioner Nabor Reyes-Rodriguez, a pro se Nevada prisoner, Reyes- 13 Rodriguez moves for leave to file his Amended Petition for Writ of Habeas Corpus (ECF 14 No. 9 (“Amended Petition”)) and for a scheduling order (ECF No. 10). 15 Reyes-Rodriguez tentatively calculated the federal statute of limitations under 28 16 U.S.C. § 2244(d) and, because the limitations period may expire on or about June 24, 17 2025, he requests leave to file his Amended Petition as a protective petition. Reyes- 18 Rodriguez further requests issuance of a scheduling order that provides for the 19 opportunity to file a second amended petition that reflects his counsel’s thorough review, 20 research, and investigation. The respondents do not oppose the motions. (ECF No. 11.) 21 The motions essentially seek to pursue a “two-step” procedure whereby Reyes- 22 Rodriguez: (a) files an initial counseled amended petition preserving all then-known 23 claims potentially free of possible relation-back or timing issues; and (b) thereafter 24 potentially files a second amended petition after federal habeas counsel has had a full 25 opportunity to independently investigate all potential claims. See, e.g., McMahon v. 26 Neven, No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev. May 29, 2014) (explaining 27 the Court's rationale in allowing a bifurcated amendment procedure in habeas cases 28 where the limitation period potentially may expire before federal habeas counsel would 1 be able to conduct a complete investigation); see also Xiao Ye Bai v. Nevada, 2021 WL 2 246110, at *1 (D. Nev. Jan. 25, 2021). The Court finds that Reyes-Rodriguez has shown 3 good cause to utilize the two-step procedure and, therefore, grants his motions. 4 Accordingly, it is hereby ordered: 5 1. Petitioner Nabor Reyes-Rodriguez’s Motion for Leave to File Document (ECF No. 6 9) is granted. 7 2. The Clerk of the Court is directed to file Reyes-Rodriguez’s Amended Petition 8 (ECF No. 9-1) and the attached Exhibits and Index of Exhibits (ECF Nos. 9-2, 9-3, 9 9-4, 9-5, 9-6, 9-7, 9-8, 9-9) on the docket. 10 3. Reyes-Rodriguez’s Motion for Scheduling Order (ECF No. 10) is granted. 11 4. The Federal Public Defender, through Jonathan M. Kirshbaum, Esq., is appointed 12 as counsel for Petitioner under 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent 13 Petitioner in all federal proceedings related to this matter, including any appeals or 14 certiorari proceedings, unless allowed to withdraw. 15 5. Petitioner will have until September 23, 2025 to file a second amended petition 16 and/or seek other appropriate relief. This deadline and any extension thereof may 17 not be construed as implied findings regarding the federal limitation period or a 18 basis for tolling. Petitioner at all times remains responsible for calculating the 19 running of the federal limitation period and timely asserting claims without regard 20 to any court-ordered deadlines or extensions. Thus, a petition or amended petition 21 filed within a court-ordered deadline may still be dismissed as untimely if it violates 22 the statute of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 23 6. Respondents must file a response to the second amended petition, including, 24 potentially by motion to dismiss, within 60 days of service of an second amended 25 petition. Petitioner may file a reply within 30 days of service of the answer. 26 However, Local Rule LR 7-2(b) governs the response and reply time to any motion 27 filed by either party, including motions filed in lieu of a pleading. 28 7. Any procedural defenses Respondents raise to the counseled amended petition 1 must be raised together in a single, consolidated motion to dismiss. Successive 2 motions to dismiss will not be entertained, and any procedural defenses omitted 3 from the consolidated motion to dismiss will be waived. Respondents may not file 4 a response that consolidates their procedural defenses, if any, with their response 5 on the merits. But, arguments that an unexhausted claim clearly lacks merit may 6 be included in a procedural-defense response. If Respondents seek dismissal of 7 unexhausted claims under 28 U.S.C. § 2254(b)(2), they must: (1) do so in a single 8 motion to dismiss, not in the answer; and (2) specifically direct their argument to 9 the standard for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 10 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 11 exhaustion, may be included with the merits in an answer. All procedural defenses, 12 including exhaustion, must be raised in a single motion to dismiss. 13 8. In any answer filed on the merits, Respondents must specifically cite to and 14 address the applicable state court written decision and state court record materials, 15 if any, regarding each claim within the response as to that claim. 16 9. Respondents must file the state court exhibits relevant to their response in 17 chronological order. 18 10. All state court records and related exhibits must be filed in accordance with LR IA 19 10-3 and LR IC 2-2 and must include a separate index identifying each exhibit by 20 number or letter. The index must be filed in CM/ECF’s document upload screen as 21 the base document to receive the base docket number (e.g., ECF No. 10). Each 22 exhibit must then be filed as “attachments” to the base document to receive a 23 sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 24 10-2), Exhibit C (ECF No. 10-3)). If the exhibits will span more than one filing, the 25 base document in each successive filing must be either a copy of the index or 26 volume cover page. See LR IC 2-2(a)(3)(A). 27 11. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 28 2 3 not be provided to chambers or to the staff attorney unless later directed by the 4 Court. 5 DATED THIS 26" Day of June 2025. ALA 7 8 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28