Santiago v. Johnson

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Paul Santiago, Case No.: 2:21-cv-00896-APG-NJK

4 Petitioner, Order Formally Appointing Federal Public Defender and Setting Briefing Schedule 5 v. [ECF No. 9] 6 Calvin Johnson, et al.,

7 Respondents.

8 The Federal Public Defender has filed a notice of appearance on petitioner's behalf.1 I 9 will formally appoint the Federal Public Defender. 10 IT THEREFORE IS ORDERED that the Federal Public Defender is appointed as counsel 11 for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent petitioner in all 12 federal proceedings related to this matter, including any appeals or certiorari proceedings, unless 13 allowed to withdraw. 14 IT FURTHER IS ORDERED that petitioner will have until up to and including 120 days 15 from entry of this order within which to file an amended petition and/or seek other appropriate 16 relief. Neither the foregoing deadline nor any extension thereof signifies or will signify any 17 implied finding as to the expiration of the federal limitation period and/or of a basis for tolling 18 during the time period established. Petitioner always remains responsible for calculating the 19 running of the federal limitation period and timely asserting claims, without regard to any 20 deadlines established or extensions granted herein. That is, by setting a deadline to amend the 21 petition and/or by granting any extension thereof, the court makes no finding or representation 22 23

1 ECF No. 9. 1 that the petition, any amendments thereto, and/or any claims contained therein are not subject to 2 dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 3 IT FURTHER IS ORDERED that respondents must file a response to the amended 4 petition, including potentially by motion to dismiss, within 60 days of service of the amended 5 petition and that petitioner may file a reply within 30 days of service of an answer. The response

6 and reply time to any motion filed by either party, including a motion filed in lieu of a pleading, 7 will be governed instead by Local Rule LR 7-2(b). 8 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 9 counseled amended petition must be raised together in a single consolidated motion to dismiss. 10 In other words, the court does not wish to address any procedural defenses raised herein either in 11 serial fashion in multiple successive motions to dismiss or embedded in the answer. Procedural 12 defenses omitted from such motion to dismiss will be subject to potential waiver. Respondents 13 must not file a response in this case that consolidates their procedural defenses, if any, with their 14 response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims

15 clearly lacking merit. If respondents do seek dismissal of unexhausted claims under 16 § 2254(b)(2): (a) they must do so within the single motion to dismiss not in the answer; and (b) 17 they must specifically direct their argument to the standard for dismissal under § 2254(b)(2) set 18 forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 19 defenses, including exhaustion, must be included with the merits in an answer. All procedural 20 defenses, including exhaustion, instead must be raised by motion to dismiss. 21 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must 22 specifically cite to and address the applicable state court written decision and state court record 23 materials, if any, regarding each claim within the response as to that claim. 1 IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies of any electronically filed exhibits need not be provided to chambers or to the staff attorney, unless later directed by the court. 4 DATED: June 24, 2021 5

7 UNITED STATES DISTRICT JUDGE

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