Barao v. State of Nevada ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 RANDY BARAO, Case No.: 2:22-cv-01954-JAD-NJK 4 Petitioner Order Directing Service of the Petition 5 v. 6 STATE OF NEVADA, et al., 7 Respondents 8 9 Petitioner Randy Barao has submitted a pro se 28 U.S.C. § 2254 petition for writ of 10 habeas corpus and has paid the filing fee.1 Having completed a preliminary review of the petition 11 under Habeas Rule 4, I direct the Clerk of Court to docket it2 and serve it on respondents. 12 IT IS THEREFORE ORDERED that the Clerk is directed to: 13 • FILE and ELECTRONICALLY SERVE the petition [ECF No. 1-1] on the 14 respondents; and 15 • ADD Aaron D. Ford, Nevada Attorney General, as counsel for respondents and 16 provide respondents an electronic copy of all items previously filed in this case 17 by regenerating the Notice of Electronic Filing to the office of the AG only. 18 IT IS FURTHER ORDERED that respondents must file a response to the petition within 19 90 days of service of the petition. Petitioner will then have 45 days from service of the 20 21 22 1 ECF Nos. 1-1, 3. 2 Because a petition for federal habeas corpus should include all claims for relief of which 23 petitioner is aware, failure to include such a claim in a petition may result in it being forever barred. See 28 U.S.C. §2244(b) (successive petitions). 1 answer, motion to dismiss, or other response to file a reply or opposition. Any other motions 2 will be subject to the normal briefing schedule under the local rules. 3 Any response to the petition must comport with Habeas Rule 5. Additionally: 4 1. Any procedural defenses raised by respondents in this case must be raised together in a 5 single, consolidated motion to dismiss. In other words, the court does not wish to address 6 any procedural defenses raised herein either in seriatum fashion in multiple successive 7 motions to dismiss or embedded in the answer. Procedural defenses omitted from the 8 motion to dismiss will be subject to potential waiver. 9 2. Respondents must not file a response in this case that consolidates their procedural 10 defenses, if any, with their response on the merits, except under 28 U.S.C. § 2254(b)(2) 11 as to any unexhausted claims clearly lacking merit. If respondents do seek dismissal of 12 unexhausted claims under § 2254(b)(2): (a) they must do so within the single motion to 13 dismiss, not in the answer, and (b) they must specifically direct their argument to the 14 standard for dismissal under § 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 15 623–24 (9th Cir. 2005). In short, no procedural defenses, including exhaustion, should be 16 included with the merits in an answer. All procedural defenses, including exhaustion, 17 must instead be raised by motion to dismiss. 18 3. In any answer filed on the merits, respondents must specifically cite to and address the 19 applicable state-court written decision and state-court record materials, if any, regarding 20 each claim within the response as to that claim. 21 4. Respondents must file the state-court exhibits relevant to their response to the petition in 22 chronological order. 23 1 5. All state court records and exhibits must be filed in accordance with LR IA 10-3 and LR 2 IC 2-2 and include a separate index identifying each exhibit by number or letter. The 3 index must be filed in CM/ECF’s document upload screen as the base document to 4 receive the base docket number (e.g., ECF No. 10). Each exhibit must then be filed as an 5 “attachment” to the base document—the index—to receive a sequenced sub-docket 6 number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit C (ECF 7 No. 10-3), and so forth). Ifthe exhibits will span more than one filing, the base 8 document in each successive filing must be either a copy of the index or volume cover 9 page. See LR IC 2-2(a)(3)(A). 10 6. The parties must send courtesy copies of any responsive pleading or motion and all 11 INDICES OF EXHIBITS ONLY to the Reno Division of this court. Courtesy copies 12 must be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and directed 13 to the attention of “Staff Attorney” on the outside of the mailing address label. No 14 further courtesy copies are required unless and until requested by the court. 15 ons U.S. District Judge’Jennifer A. Dorse 17 January 6, 2023 18 19 20 21 22 23