1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 MICHAEL WHITFIELD, Case No. 3:23-cv-00305-ART-CLB

4 Petitioner, ORDER v. 5 NETHANJAH BRUTENBACH, 6 Respondents. 7 8 Petitioner Michael Whitfield, a pro se Nevada prisoner, commenced this 9 habeas action by filing a Petition for Writ of Habeas Corpus (ECF No. 1-1). This 10 habeas matter is before the Court for initial review under the Rules Governing 11 Section 2254 Cases,1 as well as consideration of Petitioner’s Application to 12 Proceed in forma pauperis ((“IFP”) ECF Nos. 7, 11). For the reasons discussed 13 below, the Court directs service of the petition, instructs Respondents to respond, 14 and grants Petitioner’s IFP Application. 15 I. IFP Application 16 The Court has considered Petitioner’s IFP application along with the 17 attached financial documents and concludes that he cannot pay the $5.00 filing 18 fee. The IFP application will therefore be granted. 19 II. Discussion 20 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas 21 petition and order a response unless it “plainly appears” that the petitioner is not 22 entitled to relief. See Valdez v. Montgomery,

(9th Cir. 2019). 23 This rule allows courts to screen and dismiss petitions that are patently frivolous, 24 vague, conclusory, palpably incredible, false, or plagued by procedural defects. 25 Boyd v. Thompson,

(9th Cir. 1998); Hendricks v. Vasquez, 26

(9th Cir. 1990) (collecting cases). 27 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 28 Rules Governing Section 2254 Cases in the United States District Courts. 1 Petitioner challenges a conviction and sentence imposed by the Second 2 Judicial District Court for Washoe County. State of Nevada v. Whitfield, Case 3 No. CR19-1482.2 The state court entered a judgment of conviction for one count 4 of battery with the use of a deadly weapon causing substantial bodily harm and 5 three counts of obtaining or possessing a credit or debit card without the 6 cardholder’s consent and sentenced Petitioner to an aggregate term of 7 to 19 7 years. The Nevada Supreme Court affirmed the conviction. In March 2021, 8 Petitioner filed a state petition for writ of habeas corpus. The state court denied 9 post-conviction relief and the Nevada Court of Appeals affirmed the denial of relief 10 in May 2023, and a remittitur issued the following month. 11 In June 2023, Petitioner initiated this federal habeas corpus proceeding 12 pro se. (ECF No. 1.) His petition alleges claims for relief under the United States 13 Constitution. Having conducted an initial review, the Court will direct service of 14 the petition and a response. 15 III. Conclusion 16 It is therefore ordered that Petitioner’s Application to Proceed In Forma 17 Pauperis (ECF Nos. 7, 11) is GRANTED. Petitioner is permitted to maintain this 18 action to conclusion without paying the filing fee. 19 It is further ordered that the Clerk of Court is directed to add Nevada 20 Attorney General Aaron D. Ford as counsel for Respondents and to provide 21 Respondents an electronic copy of all items previously filed in this case by 22 regenerating the notice of electronic filing to the Nevada Attorney General’s office 23 only. 24 The Clerk of Court is further instructed to file Petitioner Michael Whitfield’s 25 2 The Court takes judicial notice of the online docket records of the Second 26 Judicial District Court and Nevada appellate courts. The docket records may be 27 accessed by the public online at: https://www.washoecourts.com/Query/DetailedCaseSearch and 28 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 Petition for Writ of Habeas Corpus (ECF No. 1-1). 2 It is further ordered that Respondents will have 60 days from the date the 3 petition is electronically served to appear in this action and answer or otherwise 4 respond to the petition. 5 It is further ordered that Petitioner will have 60 days following service of 6 the answer to file and serve a reply brief. If any motion is filed, the parties will 7 brief the motion in accordance with LR 7-2 and 7-3 of the Local Rules of Practice. 8 It is further ordered that any procedural defenses Respondents raise in this 9 case must be raised together in a single consolidated motion to dismiss. 10 Procedural defenses omitted from such motion to dismiss will be subject to 11 potential waiver. Respondents will not file a response in this case that 12 consolidates their procedural defenses, if any, with their response on the merits, 13 except pursuant to

(b)(2) as to any unexhausted claims clearly 14 lacking merit. If Respondents do seek dismissal of unexhausted claims under 15 § 2254(b)(2), they must do so within the single motion to dismiss, not in the 16 answer, and specifically direct their argument to the standard for dismissal under 17 § 2254(b)(2) set forth in Cassett v. Stewart,

, 623–24 (9th Cir. 2005). 18 In short, no procedural defenses, including exhaustion, will be included with the 19 merits in an answer. All procedural defenses, including exhaustion, instead must 20 be raised by motion to dismiss. 21 It is further ordered that, in any answer filed on the merits, Respondents 22 must specifically cite to and address the applicable state court written decision 23 and state court record materials, if any, regarding each claim within the response 24 as to that claim. 25 It is further ordered that Respondents must file the state court exhibits 26 relevant to their response to the petition, in chronological order. 27 It is further ordered that all state court records and related exhibits must 28 be filed in accordance with LR IA 10-3, LR IC 2-2, and LSR 3-3, and include a 1 || separate index identifying each additional exhibit by number or letter. The index 2 || must be filed in CM/ECF’s document upload screen as the base document to 3 || receive the base docket number (e.g., ECF No. 10). Each exhibit will then be filed 4 || as “attachments” to the base document—the index—to receive a sequenced sub- 5 || docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit 6 || C (ECF No. 10-3), and so forth). If the exhibits will span more than one filing, the 7 || base document in each successive filing must be either a copy of the index or 8 || volume cover page. See LR IC 2-2(a)(3)(A). 9 It is further ordered that, notwithstanding LR IC 2-2(g), paper copies of any 10 || electronically filed exhibits—for this case—need not be provided to chambers or 11 || to the staff attorney, unless later directed by the court. 12 DATED THIS day of March 2024. 13 en 14 Ana plot? Is UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28