Gipson v. Warden Najara ( 2023 )

2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Kevin M. Gipson, Case No. 2:23-cv-00996-CDS-BNW 5 Plaintiff Order Confirming Counsel and Setting Briefing Schedule 6 v. 7 Warden Najara, et al., [ECF Nos. 9, 10] 8 Defendants 9 10 Following the Notice of Appearance (ECF Nos. 9, 10) by the Federal Public Defender on 11 behalf of petitioner Kevin M. Gipson, it is hereby ordered: 12 1. The Federal Public Defender, through Margaret Lambrose, Esq. and C.B. Kirschner, 13 Esq., is appointed as counsel for petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will 14 represent petitioner in all federal proceedings related to this matter, including any appeals or 15 certiorari proceedings, unless allowed to withdraw. 16 2. Petitioner will have until March 15, 2024, to file an amended petition and/or seek 17 other appropriate relief. This deadline and any extension thereof may not be construed as implied 18 findings regarding the federal limitation period or a basis for tolling. Petitioner at all times 19 remains responsible for calculating the running of the federal limitation period and timely 20 asserting claims, without regard to any court-ordered deadlines or extensions. Thus, a petition or 21 amended petition filed within a court-ordered deadline may still be dismissed as untimely if it 22 violates the statute of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 23 3. Respondents must file a response to the amended petition, including potentially by 24 motion to dismiss, within 60 days of service of an amended petition. Petitioner may file a reply 25 within 30 days of service of the answer. However, Local Rule LR 7-2(b) governs the response and 26 reply time to any motion filed by either party, including motions filed in lieu of a pleading. 27 4. Any procedural defenses respondents raise to the counseled amended petition must be 28 raised together in a single, consolidated motion to dismiss. Successive motions to dismiss will not 1 || be entertained, and any procedural defenses omitted from the consolidated motion to dismiss 2 || will be waived. Respondents may not file a response that consolidates their procedural defenses, 3 || if any, with their response on the merits. But arguments that an unexhausted claim clearly lacks 4 || merit may be included a procedural-defense response. If respondents seek dismissal of 5 |} unexhausted claims under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single motion to 6 || dismiss, not in the answer; and (2) specifically direct their argument to the standard for dismissal 7 || under § 2254(b)(2) as set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, 8 || no procedural defenses, including exhaustion, may be included with the merits in an answer. All 9 || procedural defenses, including exhaustion, must be raised in a single motion to dismiss. 10 5. Inany answer filed on the merits, respondents must specifically cite to and address 11 || the applicable state court written decision and state court record materials, if any, regarding each 12 || claim within the response as to that claim. B 6. Respondents must file the state court exhibits relevant to their response in 14 || chronological order. 15 7. All state court records and related exhibits must be filed in accordance with LR IA 10- 16 |} 3 and LR IC 2-2 and include a separate index identifying each exhibit by number or letter. The 17 || index must be filed in CM/ECF’s document upload screen as the base document to receive the 18 || base docket number (e.g., ECF No. 10). Each exhibit must then be filed as “attachments” to the 19 || base document to receive a sequenced sub-docket number (e.g., Exhibit A (ECF No. 10-1), 20 |} Exhibit B (ECF No. 10-2), Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more 21 || than one filing, the base document in each successive filing must be either a copy of the index or 22 || volume cover page. See LR IC 2-2(a)(3)(A). 23 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 24 || not be provided to chambers or to the staff attorney, unless later directed by the court. 25 DATED: December 27, 2023 /, / hbarge—— 27 Uni Y tates District Judge 28 ly XY