Holmes Jr v. Gentry ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 LAFAYETTE D. HOLMES, JR., Case No. 2:17-cv-01980-RFB-GWF 12 Petitioner, ORDER 13 v. 14 JO GENTRY, et al., 15 Respondents. 16 17 Following upon petitioner's filing of the second amended petition (ECF No. 30);1 18 IT THEREFORE IS ORDERED that respondents shall file a response to the second 19 amended petition, including potentially by motion to dismiss, within sixty (60) days of service of 20 an amended petition and that petitioner may file a reply within thirty (30) days of service of an 21 answer. The response and reply time to any motion filed by either party, including a motion filed 22 in lieu of a pleading, shall be governed instead by Local Rule LR 7-2(b). 23 IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the 24 counseled amended petition shall be raised together in a single consolidated motion to dismiss. In 25 other words, the Court will not address procedural defenses raised either in serial fashion by way 26 of multiple motions to dismiss or in the answer. Procedural defenses omitted from such motion to 27 1 The court is using the corrected image of the second amended petition, not the original filing of the second 28 amended petition (ECF No. 28). 1 | dismiss will be subject to potential waiver. Respondents shall not file a response in this case that 2 | consolidates their procedural defenses, if any, with their response on the merits, except pursuant 3 | to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If respondents do 4 | seek dismissal of unexhausted claims under § 2254(b)(2): (a) they shall do so within the single 5 | motion to dismiss not in the answer; and (b) they shall specifically direct their argument to the 6 || standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 7 | (9th Cir. 2005). No procedural defenses, including exhaustion, shall be included with the merits 8 | in an answer. All procedural defenses, including exhaustion, instead must be raised by a single 9 | motion to dismiss. 10 IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents shall 11 || specifically cite to and address the applicable state court written decision and state court record 12 | materials, if any, regarding each claim within the response as to that claim. 13 IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies 14 | of any electronically filed exhibits need not be provided to chambers or to the staff attorney, 15 | unless later directed by the court. 16 DATED: August 13, 2019. 17 fs RICHARD F. BOULWARE, II 18 United States District Judge 19 20 21 22 23 24 25 26 27 28