Muhammad-Coleman v. LaGrand ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 DARION MUHAMMAD-COLEMAN, Case No. 3:23-cv-00012-ART-CLB 5 Petitioner, Order Setting Briefing Schedule 6 v. 7 LAGRAND, et al., 8 Respondents. 9 On April 6, 2023, the court granted Darion Muhammad-Coleman’s request 10 to appoint counsel and appointed the Federal Public Defender to represent 11 petitioner. (ECF No. 7.) On May 3, 2023, Kimberly Sandberg of the Federal Public 12 Defender’s Office appeared on behalf of petitioner. (ECF No. 11.) 13 IT IS THEREFORE ORDERED that counsel for Petitioner meet with 14 Petitioner as soon as reasonably possible to: (a) review the procedures applicable 15 in cases under 28 U.S.C. § 2254; (b) discuss and explore with Petitioner, as fully 16 as possible, the potential grounds for habeas corpus relief in Petitioner’s case; 17 and (c) advise Petitioner that all possible grounds for habeas corpus relief must 18 be raised at this time and that the failure to do so will likely result in the omitted 19 grounds being barred from future review under the rules regarding abuse of writ. 20 IT IS FURTHER ORDERED that counsel for Petitioner file an amended 21 petition for writ of habeas corpus within 90 days, which includes all known 22 grounds for relief (both exhausted and unexhausted). 23 IT IS FURTHER ORDERED that Respondents file a response to the 24 petition within 90 days of service of the petition. Petitioner will then have 45 days 25 from service of the answer, motion to dismiss, or other response to file a reply or 26 opposition. Any other motions will be subject to the normal briefing schedule 27 under the local rules. 28 1 Any response to the petition must comport with Habeas Rule 5. 2 Additionally: 3 1. Any procedural defenses raised by Respondents in this case must be 4 5 raised together in a single, consolidated motion to dismiss. In other 6 words, the court does not wish to address any procedural defenses raised 7 herein either in seriatum fashion in multiple successive motions to 8 dismiss or embedded in the answer. Procedural defenses omitted from the 9 motion to dismiss will be subject to potential waiver. 10 2. Respondents must not file a response in this case that consolidates their 11 12 procedural defenses, if any, with their response on the merits, except 13 under 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly 14 lacking merit. If Respondents do seek dismissal of unexhausted claims 15 under § 2254(b)(2): (a) they must do so within the single motion to 16 dismiss, not in the answer, and (b) they must specifically direct their 17 argument to the standard for dismissal under § 2254(b)(2) set forth in 18 19 Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). In short, no 20 procedural defenses, including exhaustion, should be included with the 21 merits in an answer. All procedural defenses, including exhaustion, must 22 instead be raised by motion to dismiss. 23 3. In any answer filed on the merits, Respondents must 24 25 specifically cite to and address the applicable state-court written decision 26 and state-court record materials, if any, regarding each claim within the 27 response as to that claim; and Respondents must file a set of state court 28 1 exhibits relevant to the response filed to the petition. Those exhibits must 2 be filed chronologically and be accompanied by a separate index of exhibits 3 identifying the exhibits by number. Each exhibit must be a separate 4 attachment, and the CM/ECF attachments that are filed must be identified ° by the number of the exhibit in the attachment. The purpose of this provision is to allow the court and any reviewing court thereafter to quickly 8 determine from the face of the electronic docket sheet which numbered 9 exhibits are filed in which attachments. Respondents must send a hard 10 copy of all pleadings and indices of exhibits ONLY filed for this case to the 11 Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, directed to the 12 attention of “Staff Attorney” on the outside of the mailing address label. 13 14 15 DATED THIS 8 day of May 2023. 16 17 den 18 Aras 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28