1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 KENTRELL D. WELCH, Case No. 2:19-cv-00193-RFB-VCF

10 Petitioner, ORDER

11 v. 12 WARDEN BRIAN WILLIAMS, et al., 13 Respondents. 14 15 This action is a Petition for a Writ of Habeas Corpus filed pursuant to

2254 by Nevada state prisoner Kentrell D. Welch. On April 15, 2020, this Court granted 17 Petitioner’s Motion for Counsel and appointed the Federal Public Defender to represent 18 Petitioner in this action (ECF No. 45). On May 15, 2020, Emma L. Smith and C.B. 19 Kirschner of the Federal Public Defender’s Office appeared as co-counsel on behalf of 20 Petitioner (ECF Nos. 46, 47). The Court now sets a schedule for further proceedings in 21 this action. 22 IT IS THEREFORE ORDERED that Counsel for Petitioner meet with Petitioner as 23 soon as reasonably possible, if counsel has not already done so, to: (a) review the 24 procedures applicable in cases under

; (b) discuss and explore with 25 Petitioner, as fully as possible, the potential grounds for habeas corpus relief in 26 Petitioner’s case; and (c) advise Petitioner that all possible grounds for habeas corpus 27 relief must be raised at this time in this action and that the failure to do so will likely result 1 IT IS FURTHER ORDERED that Petitioner has ninety (90) days from the date of 2 this order to file and serve on Respondents an amended Petition for Writ of Habeas 3 Corpus, if any. 4 IT IS FURTHER ORDERED that Respondents have forty-five (45) days after 5 service of an amended petition within which to answer, or otherwise respond to, the 6 amended petition. If Petitioner does not file an amended petition, Respondents have 7 forty-five (45) days from the date on which the amended petition is due within which to 8 answer, or otherwise respond to, Petitioner’s original petition. Any response filed should 9 comply with the remaining provisions below, which are entered pursuant to Habeas Rule 10 5. 11 IT IS FURTHER ORDERED that any procedural defenses raised by Respondents 12 in this case be raised together in a single consolidated Motion to Dismiss. In other words, 13 the Court does not wish to address any procedural defenses raised herein either in 14 seriatum fashion in multiple successive motions to dismiss or embedded in the answer. 15 Procedural defenses omitted from such motion to dismiss will be subject to potential 16 waiver. Respondents should not file a response in this case that consolidates their 17 procedural defenses, if any, with their response on the merits, except pursuant to 28

(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents 19 do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they should do so within 20 the single Motion to Dismiss, not in the answer; and (b) they should specifically direct 21 their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v.

F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 23 exhaustion, should be included with the merits in an answer. All procedural defenses, 24 including exhaustion, instead must be raised by a Motion to Dismiss. 25 IT IS FURTHER ORDERED that, in any answer filed on the merits, Respondents 26 must specifically cite to and address the applicable state court written decision and state 27 court record materials, if any, regarding each claim within the response as to that claim. 1 IT IS FURTHER ORDERED that, if and when Respondents file an answer or other 2 || responsive pleading, Petitioner will have thirty (30) days after service of the answer or 3 || responsive pleading to file and serve his response. 4 IT IS FURTHER ORDERED that any additional state court record exhibits filed 5 || herein by either Petitioner or Respondents be filed with a separate index of exhibits 6 || identifying the exhibits by number. The CM/ECF attachments that are filed also must be 7 || identified by the number or numbers of the exhibits in the attachment. 8 IT IS FURTHER ORDERED that, at this time, the parties shall send courtesy 9 || copies of any responsive pleading and all INDICES OF EXHIBITS ONLY to the Reno 10 || Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 S. 11 || Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the 12 || outside of the mailing address label. No further courtesy copies are required unless 13 || and until requested by the court. 14 15 DATED: 18 May 2020. 16 17 18 UNITED STATES*BISTRICT JUDGE

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