Filed: Apr. 03, 2014
Latest Update: Apr. 03, 2014
Summary: ORDER JAMES C. MAHAN, District Judge. This represented habeas matter comes before the court for initial review of the counseled amended petition (#44). Following initial review, a response will be directed. IT THEREFORE IS ORDERED that respondents shall have thirty (30) days from entry of this order within which to respond, including potentially by motion to dismiss, to the petition, as amended. Any response filed shall comply with the remaining provisions below, which are tailored to this
Summary: ORDER JAMES C. MAHAN, District Judge. This represented habeas matter comes before the court for initial review of the counseled amended petition (#44). Following initial review, a response will be directed. IT THEREFORE IS ORDERED that respondents shall have thirty (30) days from entry of this order within which to respond, including potentially by motion to dismiss, to the petition, as amended. Any response filed shall comply with the remaining provisions below, which are tailored to this ..
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ORDER
JAMES C. MAHAN, District Judge.
This represented habeas matter comes before the court for initial review of the counseled amended petition (#44). Following initial review, a response will be directed.
IT THEREFORE IS ORDERED that respondents shall have thirty (30) days from entry of this order within which to respond, including potentially by motion to dismiss, to the petition, as amended. Any response filed shall comply with the remaining provisions below, which are tailored to this particular case based upon the court's screening of the matter and which are entered pursuant to Habeas Rule 4.
IT FURTHER IS ORDERED that any procedural defenses raised by respondents in this case shall be raised together in a 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 such motion to dismiss will be subject to potential waiver. Respondents shall not file a response in this case that consolidates their procedural defenses, if any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single motion to dismiss not in the answer; and (b) they shall 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, shall be included with the merits in an answer. All procedural defenses, including exhaustion, instead must be raised by motion to dismiss.
IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall specifically cite to and address the applicable state court written decision and state court record materials, if any, regarding each claim within the response as to that claim.
IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of the answer, motion to dismiss, or other response to file a reply or opposition.
IT FURTHER IS ORDERED that, absent extraordinary circumstances, any request for an extension based upon scheduling conflicts between this case and other matters in this district shall be sought in the later-filed case.1
