1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 JOANNA BOYD, Case No. 2:20-cv-01577-RFB-BNW

6 Petitioner, v. ORDER 7 STATE OF NEVADA, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Joanna Boyd’s Motion for Leave to 11 File Second Amended Protective Petition for Writ of Habeas Corpus (ECF No. 12) and Motion for 12 Scheduling Order (ECF No. 13), as well as the Notice of Appearance (ECF No. 11) by the Federal 13 Public Defender on behalf of Boyd. 14 Boyd seeks to pursue a “two-step” procedure whereby she: (a) files a counseled second 15 amended protective petition to potentially ensure all possible claims counsel has identified so far 16 are timely preserved for federal review; and (b) thereafter files a third amended petition after 17 counsel has had a full opportunity to independently investigate all potential claims. The Court has 18 expressly authorized such a two-step procedure in prior cases, and it does so here. See, e.g., 19 McMahon v. Neven, No. 2:14-cv-00076-APG-CWH, ECF No. 29 (D. Nev. May 29, 2014) 20 (explaining the Court’s rationale in allowing a bifurcated amendment procedure in habeas cases 21 where the limitation period potentially may expire before federal habeas counsel would be able to 22 conduct a complete investigation). The Court expresses no opinion as to the putative expiration 23 date of the limitation period in this case. 24 IT IS THEREFORE ORDERED: 25 1. Petitioner Joanna Boyd’s Motion for Leave to File Second Amended Protective 26 Petition for Writ of Habeas Corpus (ECF No. 12) and Motion for Scheduling Order 27 (ECF No. 13) are GRANTED. 28 2. The Federal Public Defender, through Jonathan Kirshbaum, Esq., is appointed as 1 counsel for Boyd pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will represent 2 Boyd in all federal proceedings related to this matter, including any appeals or certiorari 3 proceedings, unless allowed to withdraw. 4 3. The Clerk of Court is directed to FILE the proposed second amended petition (ECF 5 No. 12-1). 6 4. Boyd will have until 90 days from entry of this order to file a third amended petition 7 and/or seek other appropriate relief. This deadline and any extension thereof may not 8 be construed as implied findings regarding the federal limitation period or a basis for 9 tolling. Boyd at all times remains responsible for calculating the running of the federal 10 limitation period and timely asserting claims, without regard to any court-ordered 11 deadlines or extensions. Thus, a petition or amended petition filed within a court- 12 ordered deadline may still be dismissed as untimely if it violates the statute of 13 limitations. See Sossa v. Diaz,

(9th Cir. 2013). 14 5. Respondents are not required to respond to the second amended petition at this time: 15 a. If Boyd choses to file a third amended petition, Respondents must file a 16 response within 60 days of service of a third amended petition; or 17 b. If Boyd chooses not to file a third amended petition, Respondents must, 18 within 60 days of the expiration of the time to do so, file a response to the 19 second amended petition. 20 6. Boyd may file a reply within 30 days of service. The response and reply time to any 21 motion filed by either party, including a motion filed in lieu of a pleading, will be 22 governed instead by the local rules. 23 7. Any procedural defenses Respondents raise to the counseled amended petition must be 24 raised together in a single, consolidated motion to dismiss. Successive motions to 25 dismiss will not be entertained, and any procedural defenses omitted from the 26 consolidated motion to dismiss will be waived. Respondents may not file a response 27 that consolidates their procedural defenses, if any, with their response on the merits. 28 But arguments that an unexhausted claim clearly lacks merit may be included a 1 procedural-defense response. If Respondents seek dismissal of unexhausted claims 2 under

(b)(2) they must: (1) do so in a single motion to dismiss, not in 3 the answer; and (2) specifically direct their argument to the standard for dismissal under 4 § 2254(b)(2) as set forth in Cassett v. Stewart,

(9th Cir. 2005). 5 In short, no procedural defenses, including exhaustion, may be included with the merits 6 in an answer. All procedural defenses, including exhaustion, must be raised in a single 7 motion to dismiss. 8 8. In any answer filed on the merits, Respondents must specifically cite to and address the 9 applicable state court written decision and state court record materials, if any, regarding 10 each claim within the response as to that claim. 11 9. Respondents must file the state court exhibits relevant to their response in 12 chronological order. 13 10. All state court records and related exhibits must be filed in accordance with LR IA 14 10-3 and LR IC 2-2 and include a separate index identifying each exhibit by number or 15 letter. The index must be filed in CM/ECF’s document upload screen as the base 16 document to receive the base docket number (e.g., ECF No. 10). Each exhibit must 17 then be filed as “attachments” to the base document to receive a sequenced sub-docket 18 number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF 19 No. 10-3), and so forth). If the exhibits will span more than one filing, the base 20 document in each successive filing must be either a copy of the index or volume cover 21 page. See LR IC 2-2(a)(3)(A). 22 11. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 23 not be provided to chambers or to the staff attorney, unless later directed by the court. 24 DATED this 22™ day of October 2020. 25 amen

RICHAR#’F. BOWLWARE, I 27 UNITED SLATESDISTS CT JUDGE 28