Brown v. Johnson

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA ASA JAVON BROWN, Case No. 2:21-cv-01396-GMN-VCF 6 Petitioner, v. ORDER WILLIAM HUTCHINGS, et al., Respondents.

10 Following the Notices of Appearance (ECF Nos. 10, 11) by the Federal Public Defender on behalf of Petitioner Asa Javon Brown, IT IS HEREBY ORDERED: 12 1. The Federal Public Defender, through Jonathan Kirshbaum, Esq. and Ron Sung, Esq., 13 is appointed as counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel 14 will represent Petitioner in all federal proceedings related to this matter, including any 15 appeals or certiorari proceedings, unless allowed to withdraw.

16 2. Petitioner will have until April 4, 2022, to file an amended petition and/or seek other 17 appropriate relief. This deadline and any extension thereof may not be construed as 18 implied findings regarding the federal limitation period or a basis for tolling. Petitioner 19 at all times remains responsible for calculating the running of the federal limitation 20 period and timely asserting claims, without regard to any court-ordered deadlines or 21 extensions. Thus, a petition or amended petition filed within a court-ordered deadline 22 may still be dismissed as untimely if it violates the statute of limitations. See Sossa v. 23 Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

24 3. Respondents must file a response to the amended petition, including potentially by 25 motion to dismiss, within 60 days of service of an amended petition. Petitioner may 26 file a reply within 30 days of service of the answer. However, LR 7-2(b) governs the 27 response and reply time to any motion filed by either party, including motions filed in 28 lieu of a pleading.

1 4. Any procedural defenses Respondents raise to the counseled amended petition must be 2 raised together in a single, consolidated motion to dismiss. Successive motions to 3 dismiss will not be entertained, and any procedural defenses omitted from the 4 consolidated motion to dismiss will be waived. Respondents may not file a response 5 that consolidates their procedural defenses, if any, with their response on the merits.

6 But arguments that an unexhausted claim clearly lacks merit may be included a 7 procedural-defense response. If Respondents seek dismissal of unexhausted claims 8 under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to dismiss, not in 9 the answer; and (2) specifically direct their argument to the standard for dismissal under 10 § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005).

11 In short, no procedural defenses, including exhaustion, may be included with the merits 12 in an answer. All procedural defenses, including exhaustion, must be raised in a single 13 motion to dismiss.

14 5. In any answer filed on the merits, Respondents must specifically cite to and address the 15 applicable state court written decision and state court record materials, if any, regarding 16 each claim within the response as to that claim.

17 6. Respondents must file the state court exhibits relevant to their response in 18 chronological order.

19 7. All state court records and related exhibits must be filed in accordance with LR IA 20 10-3, LR IC 2-2, and LSR 3-3, and include a separate index identifying each exhibit by 21 number or letter. The index must be filed in CM/ECF’s document upload screen as the 22 base document to receive the base docket number (e.g., ECF No. 10). Each exhibit 23 must then be filed as “attachments” to the base document to receive a sequenced sub- 24 docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C 25 (ECF No. 10-3), and so forth). If the exhibits will span more than one filing, the base /// /// /// 1 document in each successive filing must be either a copy of the index or volume cover 2 page. See LR IC 2-2(a)(3)(A).

3 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits—for 4 this case—need not be provided to chambers or to the staff attorney, unless later 5 directed by the court.

6 DATED: February 2, 2022 ________________________________ GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE