Diaz-Castro v. Williams ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 CHRISTOPHER JOHN DIAZ-CASTRO, Case No. 2:23-cv-01508-ART-BNW 6 Petitioner, ORDER v. 7 BRIAN WILLIAMS, et al., 8 Respondents. 9 10 Following the Notice of Appearance (ECF No. 17) by the Federal Public 11 Defender on behalf of Petitioner Christopher John Diaz-Castro, it is hereby 12 ordered: 13 1. The Federal Public Defender, through Alicia R. Intriago, Esq., is 14 appointed as counsel for Petitioner pursuant to 18 U.S.C. 15 § 3006A(a)(2)(B). Counsel will represent Petitioner in all federal 16 proceedings related to this matter, including any appeals or certiorari 17 proceedings, unless allowed to withdraw. 18 2. Petitioner will have 90 days from entry of this order to file an amended 19 petition and/or seek other appropriate relief. This deadline and any 20 extension thereof may not be construed as implied findings regarding 21 the federal limitation period or a basis for tolling. Petitioner at all times 22 remains responsible for calculating the running of the federal limitation 23 period and timely asserting claims, without regard to any court-ordered 24 deadlines or extensions. Thus, a petition or amended petition filed 25 within a court-ordered deadline may still be dismissed as untimely if it 26 violates the statute of limitations. See Sossa v. Diaz, 729 F.3d 1225, 27 1235 (9th Cir. 2013). 28 3. Respondents must file a response to the amended petition, including 1 potentially by motion to dismiss, within 60 days of service of an 2 amended petition. Petitioner may file a reply within 60 days of service 3 of the answer. However, Local Rule LR 7-2(b) governs the response and 4 reply time to any motion filed by either party, including motions filed in 5 lieu of a pleading. 6 4. Any procedural defenses Respondents raise to the counseled amended 7 petition must be raised together in a single, consolidated motion to 8 dismiss. Successive motions to dismiss will not be entertained, and any 9 procedural defenses omitted from the consolidated motion to dismiss 10 will be waived. Respondents may not file a response that consolidates 11 their procedural defenses, if any, with their response on the merits. But 12 arguments that an unexhausted claim clearly lacks merit may be 13 included a procedural-defense response. If Respondents seek dismissal 14 of unexhausted claims under 28 U.S.C. § 2254(b)(2) they must: (1) do 15 so in a single motion to dismiss, not in the answer; and (2) specifically 16 direct their argument to the standard for dismissal under § 2254(b)(2) 17 as set forth in Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). 18 In short, no procedural defenses, including exhaustion, may be included 19 with the merits in an answer. All procedural defenses, including 20 exhaustion, must be raised in a single motion to dismiss. 21 5. In any answer filed on the merits, Respondents must specifically cite to 22 and address the applicable state court written decision and state court 23 record materials, if any, regarding each claim within the response as to 24 that claim. 25 6. Respondents must file the state court exhibits relevant to their response 26 in chronological order. 27 7. All state court records and related exhibits must be filed in accordance 28 with LR IA 10-3 and LR IC 2-2 and include a separate index identifying 1 each exhibit by number or letter. The index must be filed in CM/ECF’s 2 document upload screen as the base document to receive the base 3 docket number (e.g., ECF No. 10). Each exhibit must then be filed as 4 “attachments” to the base document to receive a sequenced sub-docket 5 number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), 6 Exhibit C (ECF No. 10-3), and so forth). If the exhibits will span more 7 than one filing, the base document in each successive filing must be 8 either a copy of the index or volume cover page. See LR IC 2-2(a)(3)(A). 9 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed 10 exhibits need not be provided to chambers or to the staff attorney, 11 unless later directed by the court. 12 13 Dated this 2274 day of July 2024. 14 15 An placed qn 16 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28