Patten v. Garrett ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 KODY CREE PATTEN, Case No. 3:22-cv-00310 RCJ-CLB 9 Petitioner Order 10 v. 11 STATE OF NEVADA, et al., 12 Respondents 13 This court granted 28 U.S.C. § 2254 habeas corpus petitioner Kody Cree 14 Patten’s motion for counsel and appointed the Federal Public Defender to represent 15 Patten in this action. (ECF No. 14.) Margaret W. Lambrose and Jonathan M. Kirshbaum 16 of the Federal Public Defender’s Office have appeared as counsel on behalf of Patten. 17 (ECF Nos. 17, 18.) The court now sets a schedule for further proceedings in this action. 18 IT IS THEREFORE ORDERED that counsel for petitioner meet with petitioner as 19 soon as reasonably possible, if counsel has not already done so, to: (a) review the 20 procedures applicable in cases under 28 U.S.C. § 2254; (b) discuss and explore with 21 petitioner, as fully as possible, the potential grounds for habeas corpus relief in 22 petitioner’s case; and (c) advise petitioner that all possible grounds for habeas corpus 23 1 relief must be raised at this time in this action and that the failure to do so will likely 2 result in any omitted grounds being barred from future review. 3 IT IS FURTHER ORDERED that petitioner has 90 days from the date of this 4 order to file and serve on respondents an amended petition for writ of habeas corpus. 5 IT IS FURTHER ORDERED that respondents have 45 days after service of an 6 amended petition within which to answer, or otherwise respond to, the amended 7 petition. Any response filed should comply with the remaining provisions below, which 8 are entered pursuant to Habeas Rule 5. 9 IT IS FURTHER ORDERED that any procedural defenses raised by respondents 10 in this case be raised together in a single consolidated motion to dismiss. In other 11 words, the court does not wish to address any procedural defenses raised herein either 12 in seriatum fashion in multiple successive motions to dismiss or embedded in the 13 answer. Procedural defenses omitted from such motion to dismiss will be subject to 14 potential waiver. Respondents should not file a response in this case that consolidates 15 their procedural defenses, if any, with their response on the merits, except pursuant to 16 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If 17 respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) they 18 should do so within the single motion to dismiss not in the answer; and (b) they should 19 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set 20 forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural 21 defenses, including exhaustion, should be included with the merits in an answer. All 22 procedural defenses, including exhaustion, instead must be raised by motion to dismiss. 23 1 IT |S FURTHER ORDERED that, in any answer filed on the merits, respondents 2||must specifically cite to and address the applicable state court written decision and state court record materials, if any, regarding each claim within the response as to that claim. 4 IT |S FURTHER ORDERED that, when respondents file an answer or other 5|| responsive pleading, petitioner will have 30 days after service of the answer or 6|| responsive pleading to file and serve his response. 7 IT IS FURTHER ORDERED that any additional state court record exhibits filed herein by either petitioner or respondents be filed with a separate index of exhibits identifying the exhibits by number. The CM/ECF attachments that are filed also must be 10}|identified by the number of the exhibit in the attachment. Each exhibit must be filed as a 11])separate attachment. 12 IT |S FURTHER ORDERED that, at this time, the parties send courtesy copies of responsive pleading and all indices of exhibits only to the Reno Division of this 14! Court. Courtesy copies are to be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing 16|| address label. No further courtesy copies are required unless and until requested by the 17|| court. 18 19 DATED this 9th day of April 2024. Lay 21 ROSERTC.JONES.~=~S~S UNITED STA DISTRICT JUDGE 23