Baldassarre v. Warden Bean ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 JOSHUA J. BALDASSARRE, Case No. 2:24-cv-00574-MMD-DJA 6 Petitioner, ORDER v. 7 WARDEN BEAN, et al., 8 Respondents. 9 10 Following the Notice of Appearance (ECF No. 10) by the Federal Public Defender 11 on behalf of Petitioner Joshua J. Baldassarre, it is hereby ordered: 12 1. The Federal Public Defender, through C.B. Kirschner, Esq., is appointed as 13 counsel for Petitioner pursuant to 18 U.S.C. § 3006A(a)(2)(B). Counsel will 14 represent Petitioner in all federal proceedings related to this matter, including any 15 appeals or certiorari proceedings, unless allowed to withdraw. 16 2. Petitioner will have until October 10, 2024 to file an amended petition and/or seek 17 other appropriate relief. This deadline and any extension thereof may not be 18 construed as implied findings regarding the federal limitation period or a basis for 19 tolling. Petitioner at all times remains responsible for calculating the running of the 20 federal limitation period and timely asserting claims, without regard to any court- 21 ordered deadlines or extensions. Thus, a petition or amended petition filed within 22 a court-ordered deadline may still be dismissed as untimely if it violates the statute 23 of limitations. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 24 3. Respondents must file a response to the amended petition, including potentially by 25 motion to dismiss, within 60 days of service of an amended petition. Petitioner may 26 file a reply within 30 days of service of the answer. However, Local Rule LR 7-2(b) 27 governs the response and reply time to any motion filed by either party, including 1 4. Any procedural defenses Respondents raise to the counseled amended petition 2 must be raised together in a single, consolidated motion to dismiss. Successive 3 motions to dismiss will not be entertained, and any procedural defenses omitted 4 from the consolidated motion to dismiss will be waived. Respondents may not file 5 a response that consolidates their procedural defenses, if any, with their response 6 on the merits. But arguments that an unexhausted claim clearly lacks merit may 7 be included in a procedural-defense response. If Respondents seek dismissal of 8 unexhausted claims under 28 U.S.C. § 2254(b)(2) they must: (1) do so in a single 9 motion to dismiss, not in the answer; and (2) specifically direct their argument to 10 the standard for dismissal under § 2254(b)(2) as set forth in Cassett v. Stewart, 11 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural defenses, including 12 exhaustion, may be included with the merits in an answer. All procedural defenses, 13 including exhaustion, must be raised in a single motion to dismiss. 14 5. In any answer filed on the merits, Respondents must specifically cite to and 15 address the applicable state court written decision and state court record materials, 16 if any, regarding each claim within the response as to that claim. 17 6. Respondents must file the state court exhibits relevant to their response in 18 chronological order. 19 7. All state court records and related exhibits must be filed in accordance with LR IA 20 10-3 and LR IC 2-2 and include a separate index identifying each exhibit by number 21 or letter. The index must be filed in CM/ECF’s document upload screen as the base 22 document to receive the base docket number (e.g., ECF No. 10). Each exhibit must 23 then be filed as “attachments” to the base document to receive a sequenced sub- 24 docket number (e.g., Exhibit A (ECF No. 10-1), Exhibit B (ECF No. 10-2), Exhibit 25 C (ECF No. 10-3), and so forth). If the exhibits will span more than one filing, the 26 base document in each successive filing must be either a copy of the index or 27 volume cover page. See LR IC 2-2(a)(3)(A). 28 8. Notwithstanding LR IC 2-2(g), paper copies of any electronically filed exhibits need 1 not be provided to chambers or to the staff attorney, unless later directed by the 2 Court. 3 DATED THIS 11* Day of July 2024. : © AGRE MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28