Elawyers Elawyers
Washington| Change

LI v. STATE, 2:15-cv-00955-RFB-CWH. (2015)

Court: District Court, D. Nevada Number: infdco20150602d83 Visitors: 14
Filed: May 29, 2015
Latest Update: May 29, 2015
Summary: ORDER RICHARD F. BOULWARE II , District Judge . This is a habeas corpus proceeding brought pursuant to 28 U.S.C. 2254. The court has reviewed the habeas petition pursuant to Habeas Rule 4. In accordance with that rule, the court shall order the clerk to serve the petition on the respondents and order the respondents to respond to the petition within a fixed time. A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to
More

ORDER

This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254. The court has reviewed the habeas petition pursuant to Habeas Rule 4. In accordance with that rule, the court shall order the clerk to serve the petition on the respondents and order the respondents to respond to the petition within a fixed time.

A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is aware of any claim not included in his petition, he should notify the court of that as soon as possible, perhaps by means of a motion to amend his petition to add the claim.

IT THEREFORE IS ORDERED that the clerk shall ELECTRONICALLY SERVE the petition for writ of habeas corpus (ECF No. 1) and this order on the respondents.

IT FURTHER IS ORDERED that respondents shall file a response to the petition, including potentially a motion to dismiss, within thirty (30) days of service of the petition, with any requests for relief by petitioner by motion otherwise being subject to the normal briefing schedule under the local rules. Any response filed shall comply with the remaining provisions below, 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, with any other requests for relief by respondents by motion otherwise being subject to the normal briefing schedule under the local rules.

IT FURTHER IS ORDERED that any additional state court record exhibits filed herein by either petitioner or respondents shall be filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments that are filed further shall be identified by the number or numbers of the exhibits in the attachment. The hard copy of any additional state court record exhibits shall be forwarded — for this case — to the staff attorneys in Reno.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer