Opinion
3:18-cv-00029-RCJ-CLB
11-24-2020
CHARLES NELSON, Petitioner, v. WILLIAM GITTERE, et al., Respondents.
MARIO D. VALENCIA Nevada Bar No. 6154 40 S. Stephanie St., Ste. 201 Henderson, NV 89012 T. (702) 384-7494 F. (702) 384-7545 valencia.mario@gmail.com Counsel for Charles Nelson
MARIO D. VALENCIA
Nevada Bar No. 6154
40 S. Stephanie St., Ste. 201
Henderson, NV 89012
T. (702) 384-7494
F. (702) 384-7545
valencia.mario@gmail.com
Counsel for Charles Nelson
ORDER GRANTING UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE A RESPONSE TO RESPONDENTS' MOTION TO DISMISS SECOND-AMENDED FEDERAL HABEAS PETITION
(ECF No. 44) (First Request)
Pursuant to Rule 12 of the Rules Governing Section 2254 Cases and Section 2255 Proceedings, and Fed. R. Civ. P. 6(b)(1)(A) and LR IA 6-1, Petitioner, Charles Nelson, moves for a 30-day extension of time to file his response to Respondents' Motion to Dismiss Second-Amended Federal Habeas Petition (ECF No. 44) (hereinafter "Motion to Dismiss"). The Motion to Dismiss was filed on September 28, 2020. See ECF No. 44.
This motion is unopposed. This is Nelson's first request for an extension of time to file his response to the Motion to Dismiss. His response is currently due Friday, November 27, 2020. See ECF No. 22 at 2 ("Petitioner will have 60 days following service of a motion to dismiss to respond to the motion."); see also ECF No. 41 at 2 (order extending the time for petitioner to file his second amended petition but ordering that "in all other respects" the schedule for further proceedings set forth the court's prior order, ECF No. 22, "will remain in effect."). If this unopposed motion is granted, Nelson's response to the motion to dismiss will be due on or before Monday, December 28, 2020. See Fed. R. Civ. P. 6(a)(1)(C).
Reasons for the Extension Requested
Respondents have moved to dismiss all of Nelson's grounds for relief in his second amended 28 U.S.C. § 2254 petition (ECF No. 42) for various reasons, and some for multiple reasons. See ECF No. 44. Respondents claim all of Nelson's claims should be dismissed because they are either untimely, unexhausted, or not cognizable, or for any combination of these reasons. Ibid.
This area of federal habeas practice is factually and legally complex, requiring a significant amount of time re-reading portions of the state court record, researching and analyzing the law addressing relation back and timeliness issues, exhaustion issues and what is considered a technically exhausted claim or a legitimate reason to overcome such a procedural bar, as well as the possibility and grounds for requesting a stay-and-abeyance. Moreover, Nelson must also address whether he will seek additional discovery and request an evidentiary hearing at the time he files his response to the Motion to Dismiss. See ECF No. 22 at 2-3.
Counsel for Nelson is a sole practitioner. He has been working on all of the above since being served with the Motion to Dismiss, but he's also had many other professional deadlines and hearings over the past several weeks that required a substantial amount of time. He therefore has not been able to complete the response to the Motion to Dismiss. Furthermore, counsel needs more time to discuss the Motion to Dismiss, the response to the motion, discovery, and an evidentiary hearing with Nelson. Most of their communication is by mail so that takes additional time, too. And, the request for an additional 30 days also takes into account that we are in the middle of the holiday season and the ever present (it seems) COVID-19 pandemic, which has disrupted so many's personal and professional lives and seems to be getting worse at the present time.
As noted above, this motion is unopposed. Nelson has been working on the response to the motion to dismiss. He may get it filed before the requested additional 30 days expire, but to be safe and for the reasons stated above Nelson is respectfully asking to have until Monday, December 28, 2020 to file his response.
Conclusion
The Court should grant Nelson's unopposed motion and give him until Monday, December 28, 2020 to file his response to the Motion to Dismiss (ECF No. 44).
DATED: November 24, 2020.
s/ Mario D. Valencia
MARIO D. VALENCIA
Counsel for Charles Nelson
IT IS SO ORDERED.
/s/_________
ROBERT C. JONES
District Judge
Dated: November 24, 2020.