Stone v. State of Nevada

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 RANDY M. STONE, Case No. 3:22-cv-00136-ART-CLB 5 Petitioner, Order Setting Briefing Schedule 6 v.

7 STATE OF NEVADA, et al.,

8 Respondents.

9 On August 25, 2022, the court granted 28 U.S.C. § 2254 habeas corpus 10 petitioner Randy M. Stone’s request to appoint counsel and appointed the Federal 11 Public Defender to represent petitioner. (ECF No. 18.) On September 23, 2022, 12 Shelly Richter and Jeremy Baron of the Federal Public Defender’s Office appeared 13 on behalf of petitioner. (ECF Nos. 19, 20.) 14 IT IS THEREFORE ORDERED that counsel for petitioner meet with 15 petitioner as soon as reasonably possible to: (a) review the procedures applicable 16 in cases under 28 U.S.C. § 2254; (b) discuss and explore with petitioner, as fully 17 as possible, the potential grounds for habeas corpus relief in petitioner's case; 18 and (c) advise petitioner that all possible grounds for habeas corpus relief must 19 be raised at this time and that the failure to do so will likely result in the omitted 20 grounds being barred from future review under the rules regarding abuse of writ. 21 IT IS FURTHER ORDERED that counsel for petitioner file an amended 22 petition for writ of habeas corpus within 90 days, which includes all known 23 grounds for relief (both exhausted and unexhausted). 24 IT IS FURTHER ORDERED that respondents file a response to the petition 25 within 90 days of service of the petition. Petitioner will then have 45 days from 26 service of the answer, motion to dismiss, or other response to file a reply or 27 opposition. Any other motions will be subject to the normal briefing schedule 28 1 under the local rules. 2 Any response to the petition must comport with Habeas Rule 5. 3 Additionally: 4 1. Any procedural defenses raised by respondents in this case must be 5 6 raised together in a single, consolidated motion to dismiss. In other 7 words, the court does not wish to address any procedural defenses raised 8 herein either in seriatum fashion in multiple successive motions to 9 dismiss or embedded in the answer. Procedural defenses omitted from 10 the motion to dismiss will be subject to potential waiver. 11 2. Respondents must not file a response in this case that consolidates their 12 13 procedural defenses, if any, with their response on the merits, except 14 under 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly 15 lacking merit. If respondents do seek dismissal of unexhausted claims 16 under § 2254(b)(2): (a) they must do so within the single motion to 17 dismiss, not in the answer, and (b) they must specifically direct their 18 argument to the standard for dismissal under § 2254(b)(2) set forth in 19 20 Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no 21 procedural defenses, including exhaustion, should be included with the 22 merits in an answer. All procedural defenses, including exhaustion, must 23 instead be raised by motion to dismiss. 24 3. In any answer filed on the merits, respondents must specifically cite to 25 26 and address the applicable state-court written decision and state-court 27 record materials, if any, regarding each claim within the response as to 28 1 that claim; and respondents must file a set of state court exhibits relevant 2 to the response filed to the petition. Those exhibits must be filed 3 chronologically and be accompanied by a separate index of exhibits 4 identifying the exhibits by number. The CM/ECF attachments that are ° filed must be identified by the number or numbers of the exhibits in the attachment. The purpose of this provision is to allow the court and any 8 reviewing court thereafter to quickly determine from the face of the 9 electronic docket sheet which numbered exhibits are filed in which 10 attachments. Respondents must send a hard copy of all pleadings and 11 indices of exhibits ONLY filed for this case to the Clerk of Court, 400 S. 12 Virginia St., Reno, NV, 89501, directed to the attention of “Staff Attorney” on the outside of the mailing address label.

15 16 DATED THIS 26th day of October 2022. 17 18 Ares floret 19 fF ANNE R. TRAUM 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28