Herndon v. Neven

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * THOMAS WRAY HERNDON, Case No. 3:20-cv-00489-MMD-CLB 7 Petitioner, ORDER v. DWIGHT NEVEN, et al., Respondents.

11 Following the Federal Public Defender’s Notices of Appearance (ECF Nos. 14, 15) on behalf of Petitioner Thomas Herndon, it is hereby ordered: 13 1. The Federal Public Defender, through Alicia R. Intriago and Jonathan M.

14 Kirshbaum, are appointed as counsel for Petitioner Thomas Herndon under 18 15 U.S.C. § 3006A(a)(2)(B). Counsel will represent Petitioner in all federal 16 proceedings related to this matter, including any appeals or certiorari 17 proceedings, unless allowed to withdraw.

18 2. Petitioner will have until March 2, 22002210,, to file an amended petition and/or seek 19 other appropriate relief. This deadline and any extension thereof may not be 20 construed as implied findings regarding the federal limitation period or a basis 21 for tolling. Petitioner at all times remains responsible for calculating the running 22 of the federal limitation period and timely asserting claims, without regard to 23 any court-ordered deadlines or extensions. Thus, a petition or amended petition 24 filed within a court-ordered deadline may still be dismissed as untimely if it 25 violates the statute of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th 26 Cir. 2013).

27 3. Respondents must file a response to the amended petition, including potentially 28 by motion to dismiss, within 60 days of service of an amended petition.

1 Petitioner may file a reply within 30 days of service of the answer. However, LR 2 7-2(b) governs the response and reply time to any motion filed by either party, 3 including motions filed in lieu of a pleading.

4 4. Any procedural defenses Respondents raise to the counseled amended 5 petition must be raised together in a single, consolidated motion to dismiss.

6 Successive motions to dismiss will not be entertained, and any procedural 7 defenses omitted from the consolidated motion to dismiss will be waived.

8 Respondents may not file a response that consolidates their procedural 9 defenses, if any, with their response on the merits. But arguments that an 10 unexhausted claim clearly lacks merit may be included a procedural-defense 11 response. If Respondents do seek dismissal of unexhausted claims under 28 12 U.S.C. § 2254(b)(2), Respondents must: (1) do so in a single motion to dismiss, 13 not in the answer; and (2) specifically direct their argument to the standard for 14 dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 15 623-24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, 16 may be included with the merits in an answer. All procedural defenses, 17 including exhaustion, must be raised in a single motion to dismiss.

18 5. In any answer filed on the merits, Respondents must specifically cite to and 19 address the applicable state court written decision and state court record 20 materials, if any, regarding each claim within the response as to that claim.

21 6. Respondents must file the state court exhibits relevant to their response in 22 chronological order.

23 7. All state court records and related exhibits must be filed in accordance with LR 24 IA 10-3 and LR IC 2-2 and include a separate index identifying each exhibit by 25 number or letter. The index must be filed in CM/ECF’s document upload screen 26 as the base document to receive the base docket number (e.g., ECF No. 10).

27 Each exhibit must then be filed as “attachments” to the base document to 28 receive a sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), 1 Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits 2 will span more than one filing, the base document in each successive filing 3 must be either a copy of the index or volume cover page. See LR IC 2- 4 2(a)(3)(A).

5 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits 6 need not be provided to chambers or to the staff attorney, unless later directed 7 by the Court.

8 DATED THIS 1% Day of December 2020.

AQ 11 CHIEF UNITED STATES DISTRICT JUDGE