Kennedy v. Oliver ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MARK ANTHONY KENNEDY, Case No.: 3:24-cv-00144-ART-CLB 4 Petitioner, Order Directing Service of Petition v. and Setting Briefing Schedule 5 RONALD E. OLIVER, 6 Respondent. 7 Mark Anthony Kennedy has submitted a 28 U.S.C. § 2254 petition for a 8 writ of habeas corpus. (ECF No. 1.) The Court has reviewed the petition pursuant 9 to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 and 10 directs that it be served on Respondents. 11 A petition for federal habeas corpus should include all claims for relief of 12 which Petitioner is aware. If Petitioner fails to include such a claim in his petition, 13 he may be forever barred from seeking federal habeas relief upon that claim. See 14 28 U.S.C. §2244(b) (successive petitions). If Petitioner is aware of any claim not 15 included in his petition, he should notify the Court of that as soon as possible, 16 perhaps by means of a motion to amend his petition to add the claim. 17 It is therefore ordered that the Clerk of Court electronically SERVE the 18 petition (ECF No. 1) on Respondents. 19 It is further ordered that the Clerk add Aaron D. Ford, Nevada Attorney 20 General, as counsel for Respondents and provide Respondents an electronic copy 21 of all items previously filed in this case by regenerating the Notice of Electronic 22 Filing to the office of the AG only. 23 1 It is further ordered that Respondents file a response to the petition, 2 including potentially by motion to dismiss, within 90 days of service of the 3 petition, with any requests for relief by Petitioner by motion otherwise being 4 subject to the normal briefing schedule under the Local Rules. Any response filed 5 is to comply with the remaining provisions below, which are entered pursuant to 6 Habeas Rule 5. 7 It is further ordered that any procedural defenses raised by Respondents 8 in this case be raised together in a single consolidated motion to dismiss. In 9 other words, the Court does not wish to address any procedural defenses raised 10 herein either in seriatum fashion in multiple successive motions to dismiss or 11 embedded in the answer. Procedural defenses omitted from such motion to 12 dismiss will be subject to potential waiver. Respondents should not file a 13 response in this case that consolidates their procedural defenses, if any, with 14 their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any 15 unexhausted claims clearly lacking merit. If Respondents do seek dismissal of 16 unexhausted claims under § 2254(b)(2): (a) they will do so within the single 17 motion to dismiss not in the answer; and (b) they will specifically direct their 18 argument to the standard for dismissal under § 2254(b)(2) set forth in Cassett v. 19 Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, 20 including exhaustion, should be included with the merits in an answer. All 21 procedural defenses, including exhaustion, instead must be raised by motion to 22 dismiss. 23 1 It is further ordered that, in any answer filed on the merits, Respondents specifically cite to and address the applicable state court written decision and 3]/state court record materials, if any, regarding each claim within the response to that claim. 5 It is further ordered that Petitioner has 45 days from service of the answer, 6|| motion to dismiss, or other response to file a reply or opposition, with any other 7||requests for relief by Respondents by motion otherwise being subject to the 8] normal briefing schedule under the Local Rules. 9 It is further ordered that any additional state court record exhibits filed 10||herein by either Petitioner or Respondents be filed with a separate index of lljlexhibits identifying the exhibits by number. The parties will identify filed 12||CM/ECF attachments by the number and will file each exhibit as a separate 13] attachment. 14 It is further ordered that, at this time, the parties send courtesy copies of 15] any responsive pleading or motion and all INDICES OF EXHIBITS ONLY to 16||the Reno Division of this court. Courtesy copies are to be mailed to the Clerk of 17||Court, 400 S. Virginia St., Reno, NV, 89501, and directed to the attention of “Staff Attorney” on the outside of the mailing address label. No further courtesy 19]|copies are required unless and until requested by the court. 20 DATED THIS 18th day of April 2024. 21 22 o jad Tb 93 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE