Arcibal v. Bean

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA FRANCISCO ARCIBAL, Case No. 2:23-cv-00097-ART-NJK 5 Petitioner, ORDER v. WARDEN BEAN, Respondents.

9 Following the Notice of Appearance (ECF No. 21) by the Federal Public Defender on behalf of Petitioner Francisco Arcibal, it is hereby ordered: 11 1. The Federal Public Defender, through Jonathan M. Kirshbaum, Esq., is 12 appointed as counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B).

13 Counsel will represent Petitioner in all federal proceedings related to this 14 matter, including any appeals or certiorari proceedings, unless allowed to 15 withdraw.

16 2. Petitioner will have until November 27, 2023, to file an amended petition 17 and/or seek other appropriate relief. This deadline and any extension 18 thereof may not be construed as implied findings regarding the federal 19 limitation period or a basis for tolling. Petitioner at all times remains 20 responsible for calculating the running of the federal limitation period and 21 timely asserting claims, without regard to any court-ordered deadlines or 22 extensions. Thus, a petition or amended petition filed within a court- 23 ordered deadline may still be dismissed as untimely if it violates the statute 24 of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

25 3. Respondents must file a response to the amended petition, including 26 potentially by motion to dismiss, within 60 days of service of an amended 27 petition. Petitioner may file a reply within 30 days of service of the answer.

28 However, Local Rule LR 7-2(b) governs the response and reply time to any 1 motion filed by either party, including motions filed in lieu of a pleading.

2 4. Any procedural defenses Respondents raise to the counseled amended 3 petition must be raised together in a single, consolidated motion to dismiss.

4 Successive motions to dismiss will not be entertained, and any procedural 5 defenses omitted from the consolidated motion to dismiss will be waived.

6 Respondents may not file a response that consolidates their procedural 7 defenses, if any, with their response on the merits. But arguments that an 8 unexhausted claim clearly lacks merit may be included a procedural- 9 defense response. If Respondents seek dismissal of unexhausted claims 10 under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to 11 dismiss, not in the answer; and (2) specifically direct their argument to the 12 standard for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 13 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no procedural defenses, 14 including exhaustion, may be included with the merits in an answer. All 15 procedural defenses, including exhaustion, must be raised in a single 16 motion to dismiss.

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

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

22 7. All state court records and related exhibits must be filed in accordance with 23 LR IA 10-3 and LR IC 2-2 and include a separate index identifying each 24 exhibit by number or letter. The index must be filed in CM/ECF’s document 25 upload screen as the base document to receive the base docket number 26 (e.g., ECF No. 10). Each exhibit must then be filed as “attachments” to the 27 base document to receive a sequenced sub-docket number (e.g., Exhibit A 28 (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so 1 forth). If the exhibits will span more than one filing, the base document in 2 each successive filing must be either a copy of the index or volume cover 3 page. See LR IC 2-2(a)(3)(A).

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

7 DATED THIS 8t day of September 2023.

9 Ans losed Jer 10 ANNE R. TRAUM 11 UNITED STATES DISTRICT JUDGE