Coca v. Williams ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 PETER MARK COCA, Case No. 2:20-cv-01494-KJD-DJA 10 Petitioner, ORDER 11 v. 12 WARDEN BRIAN WILLIAMS, et al., 13 Respondents. 14 15 16 This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 17 2254 by Nevada state prisoner Peter Mark Coca. On October 27, 2020, this court 18 granted petitioner’s motion for counsel and appointed the Federal Public Defender to 19 represent petitioner in this action (ECF No. 6). On December 11, 2020, Kimberly 20 Sandberg of the Federal Public Defender’s Office appeared on behalf of petitioner (ECF 21 No. 10). The court now sets a schedule for further proceedings in this action. 22 IT IS THEREFORE ORDERED that counsel for petitioner meet with petitioner as 23 soon as reasonably possible, if counsel has not already done so, to: (a) review the 24 procedures applicable in cases under 28 U.S.C. § 2254; (b) discuss and explore with 25 petitioner, as fully as possible, the potential grounds for habeas corpus relief in 26 petitioner’s case; and (c) advise petitioner that all possible grounds for habeas corpus 27 relief must be raised at this time in this action and that the failure to do so will likely 1 IT IS FURTHER ORDERED that petitioner has 90 days from the date of this 2 order to file and serve on respondents an amended petition for writ of habeas corpus, if 3 any. 4 IT IS FURTHER ORDERED that respondents have 45 days after service of an 5 amended petition within which to answer, or otherwise respond to, the amended 6 petition. If petitioner does not file an amended petition, respondents have 45 days from 7 the date on which the amended petition is due within which to answer, or otherwise 8 respond to, petitioner’s original petition. Any response filed should comply with the 9 remaining provisions below, which are entered pursuant to Habeas Rule 5. 10 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 11 in this case be raised together in a single consolidated motion to dismiss. In other 12 words, the court does not wish to address any procedural defenses raised herein either 13 in seriatum fashion in multiple successive motions to dismiss or embedded in the 14 answer. Procedural defenses omitted from such motion to dismiss will be subject to 15 potential waiver. Respondents should not file a response in this case that consolidates 16 their procedural defenses, if any, with their response on the merits, except pursuant to 17 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 18 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they 19 should do so within the single motion to dismiss not in the answer; and (b) they should 20 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set 21 forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no 22 procedural defenses, including exhaustion, should be included with the merits in an 23 answer. All procedural defenses, including exhaustion, instead must be raised by 24 motion to dismiss. 25 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 26 must specifically cite to and address the applicable state court written decision and state 27 court record materials, if any, regarding each claim within the response as to that claim. 1 IT IS FURTHER ORDERED that petitioner will have 30 days after service of the 2 answer or responsive pleading to file and serve his response. 3 IT IS FURTHER ORDERED that any additional state court record exhibits filed 4 herein by either petitioner or respondents be filed with a separate index of exhibits 5 identifying the exhibits by number. The CM/ECF attachments that are filed also must be 6 identified by the number or numbers of the exhibits in the attachment. 7 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 8 any responsive pleading and all INDICES OF EXHIBITS ONLY to the Reno Division 9 of this court. Courtesy copies are to be mailed to the Clerk of Court, 400 S. Virginia St., 10 Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the 11 mailing address label. No further courtesy copies are required unless and until 12 requested by the court. 13 DATED: 15 December 2020. 14 15 16 KENT J. DAWSON 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27