Saiz v. Williams ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BILLY JOVAN SAIZ, Case No. 2:23-cv-01228-ART-BNW 4 Petitioner, ORDER v. 5 BRIAN E. WILLIAMS, SR., 6 Respondents. 7 8 On January 17, 2024, this Court granted Petitioner Billy Jovan Saiz’s 9 motion for appointment of counsel and gave the Federal Public Defender 30 days 10 to (1) undertake direct representation of Petitioner by filing a notice of appearance 11 or (2) indicate the office’s inability to represent Petitioner in these proceedings. 12 (ECF No. 16.) On February 16, 2024, the Federal Public Defender filed a notice of 13 appearance. (ECF No. 17.) 14 It is therefore ordered that the Federal Public Defender, through Shelly 15 Richter, Esq., is appointed as counsel for Petitioner pursuant to 18 U.S.C. § 16 3006A(a)(2)(B). Counsel will represent Petitioner in all federal proceedings related 17 to this matter, including any appeals or certiorari proceedings, unless allowed to 18 withdraw. 19 It is further ordered that Petitioner shall have up to and including 90 days 20 from entry of this order within which to file an amended petition and/or seek 21 other appropriate relief. Neither the foregoing deadline nor any extension thereof 22 signifies or will signify any implied finding as to the expiration of the federal 23 limitation period and/or of a basis for tolling during the time period 24 established. Petitioner remains responsible for calculating the running of the 25 federal limitation period and timely asserting claims, without regard to any 26 deadlines established or extensions granted herein. That is, by setting a deadline 27 to amend the petition and/or by granting any extension thereof, the Court makes 28 no finding or representation that the petition, any amendments thereto, and/or 1 any claims contained therein are not subject to dismissal as untimely. See Sossa 2 v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 3 It is further ordered that Respondents shall file a response to the amended 4 petition, including potentially by motion to dismiss, within 60 days of service of 5 an amended petition and that Petitioner may file a reply thereto within 30 days 6 of service of the answer. The response and reply time to any motion filed by either 7 party, including a motion filed in lieu of a pleading, shall be governed instead by 8 Local Rule LR 7-2(b). 9 It is further ordered that any procedural defenses raised by Respondents 10 to the counseled amended petition shall be raised together in a single 11 consolidated motion to dismiss. In other words, the Court does not wish to 12 address any procedural defenses raised herein either in seriatum fashion in 13 multiple successive motions to dismiss or embedded in the answer. Procedural 14 defenses omitted from such motion to dismiss will be subject to potential 15 waiver. Respondents shall not file a response in this case that consolidates their 16 procedural defenses, if any, with their response on the merits, except pursuant 17 to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 18 Respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they 19 shall do so within the single motion to dismiss not in the answer; and (b) they 20 shall specifically direct their argument to the standard for dismissal under § 21 2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In 22 short, no procedural defenses, including exhaustion, shall be included with the 23 merits in an answer. All procedural defenses, including exhaustion, instead must 24 be raised by motion to dismiss. 25 It is further ordered that, in any answer filed on the merits, Respondents 26 shall specifically cite to and address the applicable state court written decision 27 and state court record materials, if any, regarding each claim within the response 28 as to that claim. 1 It is further ordered that any state court record and related exhibits filed 2 || herein by either Petitioner or Respondents shall be filed with a separate index of 3 || exhibits identifying the exhibits by number. The CM/ECF attachments that are 4 || filed further shall be identified by the number or numbers of the exhibits in the 5 || attachment. If the exhibits filed will span more than one ECF number in the 6 || record, the first document under each successive ECF number shall be either 7 || another copy of the index, a volume cover page, or some other document serving 8 || as a filler, so that each exhibit under the ECF number thereafter will be listed 9 || under an attachment number (i.e., attachment 1, 2, etc.). 10 It is further ordered that the hard copy of any exhibits filed by either 11 || counsel shall be delivered to the Reno Clerk’s Office. Courtesy copies of exhibits 12 || shall not be provided. 13 Dated this 20 day of February 2024. 14 15 en Ana plot? 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28