Tiaffay v. Johnson

Opinion

4 GEORGE TIAFFAY, Case No. 2:20-cv-02257-JAD-EJY

5 Petitioner, v. Order Granting Petitioner’s Motion for 6 Leave to File First Amended Petition and CALVIN JOHNSON, et al., Motion for a Scheduling Order 7 Respondents. [ECF Nos. 14, 15] 8 9 Following the notice of appearance by the Federal Public Defender on June 15, 2021,1 10 Petitioner George Tiaffay moves for leave to file his first amended petition for writ of habeas 11 corpus2 and for a scheduling order.3 Tiaffay tentatively calculated the federal statute of 12 limitations under 28 U.S.C. § 2244(d), and because the limitations period may expire on or about 13 June 16, 2021,4 he requests leave to file his first amended petition as a protective petition.5 14 Tiaffay further requests issuance of a scheduling order that provides for the opportunity to file a 15 second amended petition that reflects his counsel’s thorough review, research, and investigation.6 16 The respondents do not oppose the petitioner’s motions.7 17 The motions essentially seek to pursue a two-step procedure whereby Tiaffay: (a) files an 18 initial counseled amended petition preserving all then-known claims potentially free of possible 19 relation-back or timing issues; and (b) thereafter potentially files a second amended petition after 20 federal habeas counsel has had a full opportunity to independently investigate all potential 21 claims.8 I find that Tiaffay has shown good cause to utilize the two-step procedure here and, 22 1 ECF No. 13. See also ECF No. 16. 23 2 ECF No. 14. 24 3 ECF No. 15. 4 I express no opinion as to the putative expiration date of the limitation period in this case. 25 5 ECF No. 14 at 2. 26 6 ECF No. 15 at 3. 27 7 ECF Nos. 17, 18. 8 See, e.g., McMahon v. Neven, No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev., May 29, 2014) 28 (explaining the court's rationale in allowing a bifurcated amendment procedure in habeas cases where the 1 therefore, grant his motions. 2 IT IS HEREBY ORDERED: 3 1. The Federal Public Defender, through Jeremy C. Baron, Esq., is appointed as 4 counsel for Petitioner under 18 U.S.C. § 3006A(a)(2)(B). Mr. Baron will 5 represent Petitioner in all federal proceedings related to this matter, including any 6 appeals or certiorari proceedings, unless allowed to withdraw. 7 2. Petitioner George Tiaffay’s Motion for Leave to File First Amended Petition 8 (ECF No. 14) and Motion for Scheduling Order (ECF No. 15) are GRANTED. 9 3. The Clerk of Court is directed to FILE the first amended petition (ECF Nos. 14-1 10 to 14-18) with the filing date of June 16, 2021. 11 4. Respondents are not required to respond to the first amended petition at this time. 12 5. Petitioner will have until October 7, 2021, to file a second amended petition or 13 seek other appropriate relief. This deadline and any extensions of it may not 14 be construed as implied findings regarding the federal limitation period or a basis 15 for tolling. Petitioner at all times remains responsible for calculating the 16 limitation period and timely asserting claims, without regard to any court-ordered 17 deadlines or extensions. So, a petition or amended petition filed within a court- 18 ordered deadline may still be dismissed as untimely if it violates the statute of 19 limitations. 20 6. If Petitioner files a second amended petition, Respondents will have 60 days from 21 the date of service to respond to it—including by motion to dismiss. If Petitioner 22 chooses not to file a second amended petition, Respondents must, within 60 days 23 of the expiration of the time to do so, file a response to the first amended petition. 24 Petitioner will have 30 days from the date of service of an answer to file 25 a reply. However, Local Rule LR 7-2(b) governs the scheduling for responses 26 and replies to motions filed by either party, including motions filed in lieu of 27 limitation period potentially may expire before federal habeas counsel would be able to conduct a 28 complete investigation); Xiao Ye Bai v. Nevada, 2021 WL 246110, at *1 (D. Nev. Jan. 25, 2021). 1 pleadings. 2 7. Any procedural defenses raised by Respondents to the counseled amended 3 petition must be raised together in a single, consolidated motion to 4 dismiss. Successive motions to dismiss will not be entertained, and any 5 procedural defenses omitted from the consolidated motion to dismiss will be 6 waived. Respondents may not file a response that consolidates their procedural 7 defenses, if any, with their response on the merits. But arguments that an 8 unexhausted claim clearly lacks merit may be included a procedural-defense 9 response. If Respondents do seek dismissal of unexhausted claims 10 under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to dismiss, 11 not in the answer; and (2) specifically direct their argument to the standard for 12 dismissal under § 2254(b)(2). Basically, no procedural defenses, including 13 exhaustion, may be included with the merits in an answer. All procedural 14 defenses, including exhaustion, must be raised in a single dismissal motion. 15 8. In any answer filed on the merits, Respondents must specifically cite to and 16 address the applicable state-court-written decision and state-court- 17 record materials, if any, regarding each claim within the response as to that 18 claim. 19 9. All state court records and exhibits must be filed in accordance with LR IA 10-3 20 and LR IC 2-2 and include a separate index identifying each exhibit by number or 21 letter. The index must be filed in CM/ECF’s document upload screen as the base 22 document to receive the base docket number (e.g., ECF No. 10). Each exhibit 23 must then be filed as “attachments” to the base document to receive a sequenced 24 sub-docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), 25 Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more than one 26 filing, the base document in each successive filing must be either a copy of the 27 index or volume cover page. 28 10. Notwithstanding 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 2 the court. 3 Dated: 7-12-21 4

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