Russum v. Warden Bean ( 2024 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Montrell Russum, Case No.: 2:24-cv-01017-CDS-DJA 5 Petitioner Order Directing Service of the Petition 6 v. 7 Warden Bean, et al., 8 Respondents 9 10 Montrell Russum, who is incarcerated in High Desert State Prison, has submitted a 11 pro se 28 U.S.C. § 2254 petition for writ of habeas corpus. ECF No. 1-1. He has now complied 12 with the court’s order to pay the filing fee. See ECF No. 4. The court has conducted a preliminary 13 review of the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United 14 States District Courts and directs that it be served on respondents. 15 A petition for writ of federal habeas corpus should include all claims for relief of which 16 petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever 17 barred from seeking federal habeas relief upon that claim. See 28 U.S.C. §2244(b) (successive 18 petitions). If petitioner is aware of any claim not included in his petition, he should notify the 19 court of that as soon as possible, perhaps by means of a motion to amend his petition to add the 20 claim. 21 It is therefore ordered that the Clerk of Court detach, file, and electronically SERVE the 22 petition (ECF No. 1-1) on respondents. 23 It is further ordered that the Clerk add Aaron D. Ford, Nevada Attorney General, as 24 counsel for respondents and provide respondents an electronic copy of all items previously filed 25 in this case by regenerating the Notice of Electronic Filing to the office of the AG only. 26 1 It is further ordered that respondents file a response to the petition, including potentially 2 by motion to dismiss, within 90 days of service of the petition, with any requests for relief by 3 petitioner by motion otherwise being subject to the normal briefing schedule under the Local 4 Rules. Any response filed is to comply with the remaining provisions below, which are entered 5 pursuant to Habeas Rule 5. 6 It is further ordered that any procedural defenses raised by respondents in this case be 7 raised together in a single consolidated motion to dismiss. In other words, the Court does not 8 wish to address any procedural defenses raised herein either in seriatum fashion in multiple 9 successive motions to dismiss or embedded in the answer. Procedural defenses omitted from 10 such motion to dismiss will be subject to potential waiver. Respondents should not file a 11 response in this case that consolidates their procedural defenses, if any, with their response on 12 the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly 13 lacking merit. If respondents do seek dismissal of unexhausted claims under § 2254(b)(2): (a) 14 they will do so within the single motion to dismiss not in the answer; and (b) they will 15 specifically direct their argument to the standard for dismissal under § 2254(b)(2) set forth in 16 Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 17 exhaustion, should be included with the merits in an answer. All procedural defenses, including 18 exhaustion, instead must be raised by motion to dismiss. 19 It is further ordered that, in any answer filed on the merits, respondents specifically cite 20 to and address the applicable state court written decision and state court record materials, if 21 any, regarding each claim within the response as to that claim. 22 It is further ordered that petitioner has 45 days from service of the answer, motion to 23 dismiss, or other response to file a reply or opposition, with any other requests for relief by 24 respondents by motion otherwise being subject to the normal briefing schedule under the Local 25 Rules. 26 1 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 parties will identify filed CM/ECF attachments by the number of the exhibit in the 4|| attachment. Each exhibit must be filed as a separate attachment. 5 It is further ordered that, at this time, the parties send courtesy copies of any responsive 6|| pleading or motion and all INDICES OF EXHIBITS ONLY to the Reno Division of this Court. 7|| Courtesy copies should be mailed to the Clerk of Court, 400 S. Virginia St., Reno, NV, 89501, g|| and directed to the attention of “Staff Attorney” on the outside of the mailing address label. No g|| further courtesy copies are required unless and until requested by the court. 10 Dated: July 16, 2024 / ) LZ, — ll Cnet States Pst Judge 13 ( 14 15 16 17 18 19 20 21 22 23 24 25 26