Polk v. Hutchings ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 GERALD JEROME POLK, Case No. 2:21-cv-00513-RFB-DJA 8 Petitioner, ORDER v. 9 STATE OF NEVADA, et al., 10 Respondents. 11 This is pro se petitioner Gerald Jerome Polk’s 28 U.S.C. § 2254 habeas petition. 12 He has now paid the filing fee (see ECF No. 7). The court has reviewed the petition 13 14 pursuant to Habeas Rule 4 and directs that it be served on respondents. 15 A petition for federal habeas corpus should include all claims for relief of which 16 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be 17 forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. 18 §2254(b) (successive petitions). If petitioner is aware of any claim not included in his 19 petition, he should notify the court of that as soon as possible, perhaps by means of a 20 motion to amend his petition to add the claim. 21 22 IT IS THEREFORE ORDERED that the Clerk detach, file, and electronically 23 SERVE the petition (ECF No. 1-1) on the respondents. 24 IT IS FURTHER ORDERED that the Clerk add Aaron D. Ford, Nevada Attorney 25 General, as counsel for respondents and provide respondents an electronic copy of all 26 items previously filed in this case by regenerating the Notice of Electronic Filing to the 27 office of the AG only. 1 IT IS FURTHER ORDERED that respondents file a response to the petition, 2 including potentially by motion to dismiss, within 90 days of service of the petition, with 3 any requests for relief by petitioner by motion otherwise being subject to the normal 4 briefing schedule under the local rules. Any response filed is to comply with the 5 remaining provisions below, which are entered pursuant to Habeas Rule 5. 6 7 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 8 in this case be raised together in a single consolidated motion to dismiss. In other words, 9 the court does not wish to address any procedural defenses raised herein either in 10 seriatum fashion in multiple successive motions to dismiss or embedded in the answer. 11 Procedural defenses omitted from such motion to dismiss will be subject to potential 12 waiver. Respondents should not file a response in this case that consolidates their 13 procedural defenses, if any, with their response on the merits, except pursuant to 28 14 15 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents 16 do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they will do so within the 17 single motion to dismiss not in the answer; and (b) they will specifically direct their 18 argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 19 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 20 exhaustion, should be included with the merits in an answer. All procedural defenses, 21 including exhaustion, instead must be raised by motion to dismiss. 22 23 IT IS FURTHER ORDERED that, in any answer filed on the merits, respondents 24 specifically cite to and address the applicable state court written decision and state court 25 record materials, if any, regarding each claim within the response as to that claim. 26 IT IS FURTHER ORDERED that petitioner has 45 days from service of the answer, 27 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 IS FURTHER ORDERED that any additional state court record exhibits filed herein by either petitioner or respondents be filed with a separate index of exhibits 6 identifying the exhibits by number. The parties will identify filed CM/ECF attachments by 7|| the number or numbers of the exhibits in the attachment. 8 IT IS FURTHER ORDERED that, at this time, the parties send courtesy copies of 9 any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to the Reno 10 Division of this court. Courtesy copies shall be mailed to the Clerk of Court, 400 S. " Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing address label. No further courtesy copies are required unless 44 and until requested by the court. 15 16 17 DATED: 18 August 2021. "8 AS 19 RICHARD P-S@0iCWARE, II UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28