Taukitoku v. Filson

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 SAMISONI TAUKITOKU, Case No. 3:16-cv-00762-HDM-WGC

6 Petitioner, v. ORDER 7 WARDEN FILSON, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Samisoni 11 Taukitoku’s Motion to Reopen (“Motion”) (ECF No. 46). Respondents 12 filed a Non-Opposition (ECF No. 48). For the reasons discussed 13 below, Petitioner’s Motion is granted. 14 On May 29, 2019, the Court administratively closed this action 15 while Petitioner exhausted his unexhausted claims in state court. 16 (ECF No. 32.) Petitioner has completed his state court proceedings 17 and now moves to reopen these federal habeas proceedings. On May 18 9, 2018, the Court granted Petitioner’s renewed motion for 19 discovery and set forth a scheduling order for Petitioner to file 20 an amended petition taking into account the facts developed in 21 discovery. (ECF No. 25.) 22 IT IS THEREFORE ORDERED: 23 1. Petitioner Samisoni Taukitoku’s Motion to Reopen (ECF No. 24 46) is GRANTED. 25 2. As the stay is lifted by this order, the Clerk of Court 26 will reopen this action. 27 3. Petitioner has until October 29, 2021 to file a second 28 amended petition. Petitioner at all times remains 1 responsible for calculating the running of the federal 2 limitation period and timely presenting claims. 3 4. Respondents will have sixty days following the service of 4 the amended petition to answer, or otherwise respond to, 5 the second amended petition. 6 5. Petitioner shall have sixty days following service of the 7 answer to file and serve a reply brief. If a dispositive 8 motion is filed, the parties shall brief the motion in 9 accordance with Local Rule 7-2. 10 6. Any procedural defenses Respondents raise to the second 11 amended petition must be raised together in a single 12 consolidated motion to dismiss. Procedural defenses 13 omitted from such motion to dismiss will be subject to 14 potential waiver. Respondents will not file a response in 15 this case that consolidates their procedural defenses, if 16 any, with their response on the merits, except pursuant to 17 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly 18 lacking merit. If Respondents do seek dismissal of 19 unexhausted claims under § 2254(b)(2), they must do so 20 within the single motion to dismiss, not in the answer, 21 and specifically direct their argument to the standard for 22 dismissal under § 2254(b)(2) set forth in Cassett v. 23 Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short, 24 no procedural defenses, including exhaustion, will be 25 included with the merits in an answer. All procedural 26 defenses, including exhaustion, instead must be raised by 27 motion to dismiss. 28 7. In any answer filed on the merits, Respondents shall 1 specifically cite to and address the applicable state court 2 written decision and state court record materials, if any, 3 regarding each claim within the response as to that claim. 4 8. Any further state court record and related exhibits filed 5 herein shall be filed with a separate index of exhibits 6 identifying the exhibits by number. The CM/ECF attachments 7 that are filed further shall be identified by the number 8 or numbers of the exhibits in the attachment. If the 9 exhibits filed will span more than one ECF Number in the 10 record, the first document under each 11 successive ECF Number shall be either another copy of the 12 index, a volume cover page, or some other document serving 13 as a filler, so that each exhibit under the ECF Number 14 thereafter will be listed under an attachment number (i.e., 15 Attachment 1, 2, etc.). 16 9, Paper copies of any exhibits-for this case-need not be 17 provided to chambers or the staff attorney, unless later 18 directed to do so by the Court. 19 DATED: this lst day of October, 2021. 20 . bral’ 2 HOWARD D. MCKIBBEN 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28