Walker v. Filson

1 RENE L. VALLADARES Federal Public Defender Nevada Bar No. 11479 DAVID ANTHONY Assistant Federal Public Defender Nevada Bar No. 7978 [email protected] MARTIN L. NOVILLO Assistant Federal Public Defender Virginia State Bar No. 76997 [email protected] T. KENNETH LEE Assistant Federal Public Defender Ohio Bar No. 0065158 [email protected] E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 (702) 388-5819 (Fax) Attorneys for Petitioner 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA JAMES RAY WALKER, Case No. 2:15-cv-01240-RFB-EJY 15 Petitioner, UNOPPOSED MOTION FOR 16 v. EXTENSION OF TIME TO FILE SECOND AMENDED PETITION WILLIAM GITTERE, et al., FOR WRIT OF HABEAS CORPUS (POST-CONVICTION) Respondents. (FIRST REQUEST) DEATH PENALTY CASE 21 James Ray Walker, through counsel, hereby requests an extension of time of ninety (90) days, up to and including Monday October 4, 2021, within which to file his Second Amended Petition for Writ of Habeas Corpus. This is Mr. Walker’s first request for an extension of time. The State does not oppose the motion. This request is made and based on the following declaration of counsel and the entire file herein.

3 DATED this 6th day of July, 2021.

4 Respectfully submitted RENE L. VALLADARES 5 Federal Public Defender 7 MARTIN L. NOVILLO Assistant Federal Public Defender 1 DECLARATION OF MARTIN L. NOVILLO 2 I, Martin L. Novillo, declare as follows: 3 1. I am an attorney at law, admitted to practice before this Court, and employed as an Assistant Federal Public Defender. I represent petitioner James Ray Walker in this capital habeas case, having entered my appearance in this action on April 21, 2021. ECF No. 93.

7 2. Mr. Walker filed his proper person Petition for a Writ of Habeas Corpus on June 30, 2015. ECF No. 1. Mr. Walker amended his petition following the appointment of the Federal Public Defender for the District of Nevada (FPD). ECF Nos. 40, 77. On March 30, 2016, this Court entered an order staying this action while Petitioner exhausted in state court his unexhausted claims for habeas corpus relief. ECF No. 69.1 The state proceedings concluded and, on May 6, 2021, this Court entered an Order vacating the stay previously entered and to re-opening Mr. Walker’s federal habeas action. ECF No. 98. The Court further provided Mr. Walker would have 60 days, or until Monday July 5, 2021, to file a second amended petition for writ of habeas corpus. Counsel for Mr. Walker now seeks a ninety day (90) day extension to file Mr. Walker’s second amended petition. Respondents do not oppose this request.

1 The Court denied the Respondents’ motion for reconsideration of its order on November 18, 2016. ECF No. 74. The Court temporarily lifted the stay on May 16, 2017 to allow Mr. Walker to supplement his petition for writ of habeas corpus with a new claim. ECF No. 81. The Court noted the stay remained in effect in all 1 3. An extension of time to file Mr. Walker’s second amended petition is merited on account of several filing deadlines and commitments undersigned counsel recently had to meet in various capital habeas matters. Since the May 6, 2021 Order reopening Mr. Walker’s case, undersigned counsel has had to prepare and finalize claims for an amended habeas petition to be filed in early July 2021 in California state court in the capital habeas matter of 7 ., 2011 Cal. LEXIS 12099 (2011). Similarly, counsel has had to investigate and prepare claims for an amended petition due also in July 2021 in Nevada state court in the capital habeas matter of , 2019 Nev. Unpub. LEXIS 475 (2019).

10 Further, counsel had to review the record, investigate claims, and prepare an amended petition–filed on June 15, 2021–in the non-capital habeas matter of 12 ., 20-cv-00403-LRH (D. Nev.). Finally, counsel has had to prepare various pre-trial motions in the out-of-district federal capital trial case 14 , 18-cr-02719-RCC-BGM (D. Ariz.), including a one hundred fifty (150) page motion challenging the Federal Death Penalty Act (FDPA).

16 4. An extension of time is further merited on account of personal circumstances affecting co-counsel for Mr. Walker, Kenneth Lee. Specifically, counsel Mr. Lee underwent back surgery on June 22, 2021. Mr. Lee will be unavailable for several weeks as he recovers from the surgery. Moreover, Mr. Lee’s surgeon has informed counsel that he will not be able to travel or drive for at least the next seven weeks. As a result, the earliest counsel would be able to visit Mr. Walker would be the week of August 16, 2021.

1 5. Finally, an extension of time is needed so undersigned counsel can finalize his review of Mr. Walker’s trial, appellate, and post-conviction record.

Undersigned counsel was only recently designated as lead counsel for Mr. Walker.

4|| See ECF No. 93. Prior to that designation and while in state court exhausting claims, counsel reviewed and addressed specific issues raised in Mr. Walker's 6| | petition, but did not conduct a comprehensive and exhaustive review of the record.

7|| For the past several months, undersigned counsel has engaged in a diligent review of the entire record to ensure Mr. Walker is adequately represented in his habeas | proceedings. Counsel’s review is now nearly complete.

10 6. The present request for an extension is unopposed. On July 2, 2021, | | counsel for Petitioner contacted Deputy Attorney Jessica Perlick via email concerning 12 this request for an extension of time. Ms. Perlick has no objection to the request.

Petitioner understands that opposing counsel’s non-opposition does not waive any claims, defenses, statute of limitations, or other substantive arguments the Respondents may choose to raise at a later date.

15 7. This requested extension will permit counsel time to properly review Mr. Walker’s record and file an amended petition. It is not made for the purposes of delay, but rather in the interests of justice.

I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on July 6, 2021, in Las Vegas, Nevada.

IT IS SO ORDERED: ; /s/ Martin L. Novillo 21 MARTIN L. NOVILLO Assistant Federal Public Defender |RICHARD F. BOULWARE, II United States District Judge || DATED this 8th day of July, 2021.

1 CERTIFICATE OF SERVICE 2 In accordance with LR IC 4-1 of the Local Rules of Practice, the undersigned hereby certifies that on the 6th day of July 2021, a true and correct copy of the foregoing Unopposed Motion for Extension of Time to File Second Amended Petition (First Request) was served by the United States District Court, CM/ECF electronic filing system to: Jessica Perlick Deputy Solicitor General [email protected] An Employee of the 10 Federal Public Defender