Rodriguez v. Warden, Lovelock Correctional Center ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ABIMAEL RODRIGUEZ, Case No. 3:24-cv-00498-MMD-CSD 7 Petitioner, ORDER v. 8 WARDEN LOVELOCK CORRECTIONAL 9 CENTER, et al., 10 Respondents. 11 12 Petitioner Abimael Rodriguez, a pro se Nevada prisoner, commenced this action 13 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1-1 14 (“petition”)). The Court ordered Rodriguez to resolve the filing fee, and he timely complied. 15 (ECF Nos. 3, 4.) This matter is presently before the Court for initial review under the Rules 16 Governing Section 2254 Cases.1 17 Under Habeas Rule 4 the assigned judge must examine the habeas petition and 18 order a response unless it “plainly appears” the petitioner is not entitled to relief. See also 19 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to 20 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 21 incredible, or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) 22 (collecting cases). Courts may also dismiss claims at screening for procedural defects. 23 See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). 24 Rodriguez has not filed his petition on the appropriate form; however, he is in 25 substantial compliance and his petition is legible. See Rule 2(d) of the Rules Governing 26 Section 2254 Cases in the United States District Courts. Rodriguez has named as 27 28 1All references to a “Habeas Rule” or the “Habeas Rules” in this Order identify the 1 respondent the Warden for Lovelock Correctional Center. A habeas corpus petition shall 2 allege (as Respondent) “the name of the person who has custody” over the petitioner and 3 “by virtue of what claim or authority, if known.” 28 U.S.C. § 2242; see also § 2243 (“The 4 writ, or order to show cause shall be directed to the person having custody of the person 5 detained”). The Court is informed that Nethanjah Breitenbach is the name of the warden 6 for Lovelock Correctional Center. See Lovelock Correctional Center Facility | Nevada 7 Department of Corrections. The Court construes Rodriguez’s petition as naming 8 Nathanjah Breitenbach as the warden respondent. 9 Rodriguez challenges the constitutionality of his confinement under a judgment of 10 conviction dated March 25, 2022, by the Second Judicial District Court in Washoe County, 11 Nevada. (ECF Nos. 1-1 at 1-2.) See also Rodriguez v. State, 550 P.3d 849, 2024 WL 12 3298315, at *1 (Nev. App. 2024).2 According to the petition and the state court records, 13 Rodriguez pleaded guilty to three counts of Attempted Lewdness with a Child Less Than 14 14 Years of Age. On March 23, 2022, Rodriguez was sentenced to three terms of 15 imprisonment in the Nevada Department of Corrections. Each term was imposed for a 16 maximum of 240 months with a minimum parole eligibility of 72 months, to run 17 consecutive to one another. Thus, Rodriguez’s aggregate sentence is 720 months with 18 minimum parole eligibility at 216 months. 19 Rodriguez filed no state direct appeal but, on April 4, 2023, he filed a state petition 20 for writ of habeas corpus seeking post-conviction relief. The petition was denied as 21 procedurally barred and Rodriguez appealed. The Nevada Court of Appeals affirmed 22 finding the petition was untimely and Rodriguez failed to overcome the procedural bar. 23 Rodriguez’s request for rehearing was denied and remittitur issued on October 10, 2024. 24 On November 6, 2024, Rodriguez initiated this federal habeas corpus proceeding 25 pro se. (ECF No. 1-1.) His petition alleges four claims of ineffective assistance of trial 26 counsel in violation of the United States Constitution. Having conducted an initial review, 27 2The Court takes judicial notice of the publicly-available online dockets and records 28 of the Second Judicial District Court in Washoe County, Case Information - 1 the Court directs service of the petition and a response. 2 It is therefore ordered that the Clerk of Court file the petition (ECF No. 1-1). 3 It is further ordered that the Clerk of Court add Aaron Ford, Attorney General of 4 the State of Nevada, as counsel for Respondents, and provide Respondents an electronic 5 copy of all items previously filed in this case by regenerating the Notice of Electronic Filing 6 to the Office of the Attorney General only. 7 It is further ordered that Respondents will have 60 days from the date the petition 8 is electronically served to appear in this action and file a response to the petition, including 9 potentially by motion to dismiss. 10 It is further ordered that Petitioner may file a reply within 60 days after service of 11 the answer to the petition. 12 It is further ordered that, should either party file a motion, including a motion instead 13 of a pleading, the time for responses and replies will be governed instead by Local Rule 14 7-2(b). 15 It is further ordered that any procedural defenses, including exhaustion, that 16 Respondents raise in this case, must be raised in a single consolidated motion to dismiss. 17 Procedural defenses omitted from such motion to dismiss will be subject to potential 18 waiver. Respondents must not file a response in this case that consolidates their 19 procedural defenses, if any, with their response on the merits, except pursuant to 28 20 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. If Respondents 21 seek dismissal of unexhausted claims under § 2254(b)(2): (a) they must do so within the 22 single motion to dismiss, not in the answer; and (b) they must specifically direct their 23 argument to the standard for dismissal under § 2254(b)(2) as set forth in Cassett v. 24 Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 25 It is further ordered that, in any answer filed on the merits, Respondents must 26 specifically cite to and address the applicable state court written decision and state court 27 record materials, if any, regarding each claim within the response as to that claim. 28 It is further ordered that Respondents must file a set of state court exhibits relevant 1 || to their response to the petition, in chronological order, and indexed as discussed, infra. 2 It is further ordered that all state court records and related exhibits must be filed in 3 || accordance with LR IA 10-3 and LR IC 2-2 and include a separate index identifying each 4 || exhibit by number. The index must be filed in CM/ECF’s document upload screen as the 5 || base document to receive the base docket number (e.g., ECF No. 10). Each exhibit must 6 || then be filed as an “attachment” to the base document for each exhibit to receive a 7 || sequenced sub-docket number (e.g., Exhibit 1 (ECF No. 10-1), Exhibit 2 (ECF No. 10-2), 8 || Exhibit 3 (ECF No. 10-3), and so forth). If the exhibits span more than one filing, the base 9 || document in each successive filing must be either a copy of the index or volume cover 10 || page. See LR IC 2-2(a)(3)(A). The purpose of this provision is to ensure the Court and 11 || any reviewing court may quickly determine from the face of the electronic docket sheet 12 || which numbered exhibits are filed in which attachments. 13 It is further ordered that any hard copy exhibits for this case be forwarded to the 14 || Reno Clerk’s Office. 15 DATED THIS 26" Day of November 2024. 17 MIRANDAM.DU 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28