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Cottrell v. Woodford

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 20, 2010

DALE LLOYD COTTRELL, PETITIONER,
v.
JEANNE S. WOODFORD, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DIRECTING RESPONDENT TO FILE NO LATER THAN FOURTEEN DAYS AFTER SERVICE OF THIS ORDER DOCUMENTS AND INFORMATION CONCERNING THE RECORD (Doc. 58)

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the parties' consent and the subsequent order of the Court filed on February 25, 2005, the matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 301. Pending before the Court is the first amended petition (FAP) for writ of habeas corpus, filed on September 26, 2007 (doc. 58).

The Court has reviewed the petition and accompanying exhibits and record.

With respect to Petitioner's second round of state habeas proceedings, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on May 14, 2003. (Lodged Document ("LD") 11.) Petitioner then filed two supplements or applications to supplement the petition. (LD 12, with two stamps indicating receipt August 7, 2003, and LD 13, with only one stamp indicating receipt February 2, 2004.) Although the Supreme Court docket (our docket, doc. no. 17, referred to by Respondent as "LD 14) reflects that two documents were received by the Supreme Court on February 2, 2004 (an application to supplement and a supplement), the document labeled as LD 13 and filed by Respondent as a proposed supplement contains only one receipt stamp*fn1; thus, it is not clear that Respondent has provided this Court with all the documents received by the California Supreme Court on February 2, 2004. Further, the Supreme Court docket (our docket, doc. 17) reflects that in addition to the documents filed here by Respondent as lodged documents 12 and 13 in this proceeding, further supplements were received by the California Supreme Court on January 12, 2004 and January 27, 2004. However, these documents do not appear to have been provided to this Court by Respondent. It is thus not clear that Respondent has provided the necessary, full record of the state court proceedings in this respect.

Further, in the course of its answer in connection with a Brady issue, Respondent asserts that the California Supreme Court failed to issue a reasoned opinion and relied on an assessment of the intermediate appellate court. (Ans., doc. 75, p. 55, lines 25-28 through p. 56, lines 1-4.) Respondent represented in a footnote that court records show that the California Supreme Court obtained both the appeal file and the habeas corpus file regarding Petitioner's case from the Court of Appeal. (Ans., doc. 75, p. 56 n. 27.) In support of that assertion, Respondent cited "LD 14." (Id.) However, a review of LD 14, a two-page document, does not reflect a docket entry concerning receipt of files from the Court of Appeal. Accordingly, the Court is uninformed as to the source of Respondent's information concerning inclusion of the appellate court's files in the Supreme Court's record.

Accordingly, it is ORDERED that no later than fourteen days after the date of service of this order, Respondent SHALL FILE in this Court 1) documents to complete the record of the proceedings before the California Supreme Court in the proceeding referred to above, and 2) information and any further record required to support the Respondent's assertion that in case number S115848 the California Supreme Court had before it the habeas and the appeal files from the Court of Appeal.

IT IS SO ORDERED.


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