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. (SECOND REQUEST) DEATH PENALTY CASE 21 James Ray Walker, through counsel, hereby requests an extension of time of sixty (60) days, up to and including Friday December 3, 2021, within which to file his Second Amended Petition for Writ of Habeas Corpus. This is Mr. Walker’s second 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.

4 DATED this 4th day of October, 2021.

5 Respectfully submitted RENE L. VALLADARES 6 Federal Public Defender 8 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. On July 6, 2021, counsel for Mr. Walker sought a ninety day (90) day extension to file Mr. Walker’s second amended petition. ECF No. 99.

18 The Court granted Mr. Walker’s request on July 8, 2021. ECF No. 100.

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. A second extension of time to file Mr. Walker’s second amended petition is merited on account of several filing deadlines and commitments undersigned counsel has had to meet since his first request for additional time.

4 Specifically, undersigned counsel had to prepare and finalize claims for a 598-page amended habeas petition filed on August 30, 2021 in the capital habeas matter of 6 , 2019 Nev. Unpub. LEXIS 475 (D. Nev. 2019). Further, counsel had to draft and file an appellate brief with the Ninth Circuit in the non-capital habeas matter of , et al., 20-17249 (9th Cir.). Counsel also had to file a petition for habeas relief in the non-capital habeas matter of 10 , 20-cv-00403-LRH (D. Nev.). Finally, counsel had to prepare various pre-trial motions in the out-of-district federal capital trial case , 18-cr-02719-RCC-BGM (D. Ariz.). Co-counsel for Mr. Walker, Kenneth Lee, has faced similar time constraints. Specifically, Mr. Lee has drafted a Ninth Circuit Reply Brief in 16-9900 (9th Cir) and prepared a 149-page Opposition to Motion to Dimiss in , 3:10-cv-0021-GMN-WGC, which counsel had to get a short extension to finish. Further, Lee has been assisting in time-consuming lethal injection litigation matters in a capital habeas case where the State has actively sought to execute his client during the present year.

19 4. An extension of time is also merited on account of counsel’s recent inability to communicate or visit with Mr. Walker. For several months now, counsel has had difficulty scheduling visits with Mr. Walker due to unresponsiveness on the part of High Desert State Prison (HDSP) officials charged with processing such requests. Starting approximately one month ago, HDSP ceased responding to counsel’s requests. On September 25, 2021, after several weeks of unsuccesffuly 2| | attempting to contact prison officials, counsel received confirmation he could visit Mr. Walker. Communicating and visiting with Mr. Walker is critical to addressing 4|| matters pertinent to his amended petition. Absent any unforeseen difficulties with 5| | HDSP, counsel intends to visit Mr. Walker in the coming weeks.

6 5. The present request for an extension is unopposed. On September 30, | 2021 counsel for Petitioner contacted Deputy Attorney Jessica Perlick via email concerning 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. Petitioner further understands | Respondents are not making any factual concession regarding the basis for the 12|| extension request, as provided above, by not objecting.

13 6. This requested extension will permit counsel time to meet with Mr. Walker and adequately prepare his amended petition. It is not made for purposes of delay, but rather in the interests of justice.

18 I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on October 4, 2021, in Las Vegas, Nevada.

18 IT IS SO ORDERED: /s/ Martin L. Novillo MARTIN L. NOVILLO 19 AS Assistant Federal Public Defender RICHARD F. BOULWARE, II 21 United States District Judge 99 DATED this 5th day of October, 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 4th of October, 2021, a true and correct copy of the foregoing Unopposed Motion for Extension of Time to File Second Amended Petition (Second 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