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Voss v. Baca, 3:19-cv-00197-MMD-CBC. (2019)

Court: District Court, D. Nevada Number: infdco20190529g29 Visitors: 9
Filed: May 28, 2019
Latest Update: May 28, 2019
Summary: ORDER MIRANDA M. DU , District Judge . This habeas matter, filed by Steven Floyd Voss ("Voss" or "Petitioner"), comes before the Court on Petitioner's motions, filed through provisionally-appointed counsel, for leave to file a first amended petition and for a scheduling order permitting Voss to file a second amended petition. (ECF Nos. 11, 12.) The current provisionally-appointed counsel is seeking: (a) leave to file a first amended petition seeking to preserve then—known claims by a possi
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ORDER

This habeas matter, filed by Steven Floyd Voss ("Voss" or "Petitioner"), comes before the Court on Petitioner's motions, filed through provisionally-appointed counsel, for leave to file a first amended petition and for a scheduling order permitting Voss to file a second amended petition. (ECF Nos. 11, 12.)

The current provisionally-appointed counsel is seeking: (a) leave to file a first amended petition seeking to preserve then—known claims by a possible expiration date of the federal limitation period on May 24, 2019; and (b) entry of a scheduling order allowing ultimately appointed counsel an opportunity to file a second amended petition after a full opportunity to independently investigate all potential claims. The Court has authorized such a "two-step" procedure in prior cases in situations where time potentially remains in the federal limitation period at the time of the appointment but that period may expire prior to a full opportunity for investigation by counsel. See, e.g., McMahon v. Neven, No. 2:14cv-00076-APG-CWH, ECF No. 29 (D. Nev. May 29, 2014) (approving and explaining the Court's rationale in allowing a bifurcated amendment procedure).

Such a two-step procedure would appear to be warranted in present case. The Court notes the additional uncertainty as to the possible calculation of the federal limitation period following upon the April 29, 2019, order in No. 76211 in the Nevada Court of Appeals in relation to the language in the June 20, 2018, notice of appeal. While the Court expresses no opinion as to the ultimate calculation of the limitation period herein, it is understandable that provisional counsel is seeking to preserve all then known claims by one possible expiration date. The atypically roughhewn and provisional nature of the pleading further is understandable given the short timeframe involved, appearing to reflect "an inquiry reasonable under the circumstances."1 The Court expresses no opinion as to the ultimate resolution of any possible relation-back issues in the case.

The Court therefore will grant leave to file the tendered first amended petition and will grant the request for an order permitting the filing of a second amended petition following an adequate opportunity to investigate all potential claims. The Court will enter a scheduling order setting a specific deadline after the filing of a notice of appearance by the Federal Public Defender or a final appointment of counsel otherwise is confirmed. The Court further will be reviewing the status of any then—pending related state court proceedings prior to framing a scheduling order. If the Federal Public Defender enters a notice of appearance after completing conflict review, either side additionally may move at that time for specific scheduling order provisions, jointly or separately.

It is therefore ordered that Petitioner's motion for leave to file a first amended petition (ECF No. 11) is granted and that the Clerk of Court will file the pleading.

It is further ordered that his motion for an order allowing the filing of a second amended petition (ECF No. 12) is granted, and a deadline will be set by a later order.

FootNotes


1. Fed. R. Civ. P. 11(b).
Source:  Leagle

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