Murphy v. Johnson

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

6 DAVID MURPHY, Case No. 2:21-cv-00092-CDS-DJA 7 Petitioner, ORDER v. CALVIN JOHNSON, et al., 10 Respondents.

12 The court granted David Murphy’s request to appoint counsel and appointed the Federal Public Defender to represent petitioner. ECF No. 8. Jeremy Charles Baron of the Federal Public Defender’s Office has entered a notice of appearance on behalf of petitioner. ECF No. 12.

15 IT IS THEREFORE ORDERED that counsel for petitioner must meet with petitioner as soon as reasonably possible to: (a) review the procedures applicable in cases under 28 U.S.C. § 2254; (b) discuss and explore with petitioner, as fully as possible, the potential grounds for habeas corpus relief in petitioner’s case; and (c) advise petitioner that all possible grounds for habeas corpus relief must be raised at this time and that the failure to do so will likely result in the omitted grounds being barred from future review under the rules regarding abuse of writ.

21 IT IS FURTHER ORDERED that counsel for petitioner file an amended petition for writ of habeas corpus within 90 days, which includes all known grounds for relief (both exhausted and unexhausted).

24 IT IS FURTHER ORDERED that respondents file a response to the petition within 90 days of service of the petition. Petitioner will then have 45 days from service of the answer, motion to dismiss, or other response to file a reply or opposition. Any other motions will be subject to the normal briefing schedule under the local rules.

28 . . .

2 1. Any procedural defenses raised by respondents in this case must be raised together in a 3 single, consolidated motion to dismiss. In other words, the court does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple successive motions to dismiss or embedded in the answer. Procedural defenses omitted from the motion to dismiss will be subject to potential waiver.

2. Respondents must not file a response in this case that consolidates their procedural 9 defenses, if any, with their response on the merits, except under 28 U.S.C. 10 § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek 11 dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within the 12 single motion to dismiss, not in the answer, and (b) they must specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, should be included with the merits in an answer. All procedural defenses, 17 including exhaustion, must instead be raised by motion to dismiss.

18 3. In any answer filed on the merits, respondents must specifically cite to and address the 19 applicable state-court written decision and state-court record materials, if any, regarding 20 each claim within the response as to that claim; and 21 4. Respondents must file a set of state court exhibits relevant to the response filed to the 22 petition. Those exhibits must be filed chronologically and be accompanied by a separate 23 index of exhibits identifying the exhibits by number. The CM/ECF attachments that are 24 filed must be identified by the number or numbers of the exhibits in the attachment. The 25 purpose of this provision is to allow the court and any reviewing court thereafter to 26 quickly determine from the face of the electronic docket sheet which numbered exhibits 27 are filed in which attachments. Respondents must send a hard copy of all pleadings and 28 indices of exhibits ONLY filed for this case to the Clerk of Court, 400 S. Virginia St., Reno, 2 address label.

4 DATED this 5th day of July 2022.

UNITED STATES DISTRICT JUDGE