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Seriales v. Harrington

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 30, 2010

KEITH SERIALES, PETITIONER,
v.
K. HARRINGTON, RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PETITIONER'S MOTION TO TRANSFER EXHIBIT TO THE FIRST AMENDED PETITION (DOC. 22) ORDER GRANTING RESPONDENT AN M OPPORTUNITY TO BRIEF THE ADMISSIBILITY OF PETITIONER'S EXHIBIT A AND SETTING BRIEFING SCHEDULE DUE DATE FOR RESPONDENT'S BRIEF: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER DUE DATE FOR PETITIONER'S REPLY BRIEF: (30) DAYS AFTER SERVICE OF RESPONDENT'S BRIEF

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on March 9, 2009, and on behalf of Respondent on September 17, 2009. The case is proceeding on Petitioner's first amended petition (FAP), filed on February 3, 2010. (Doc. 23.)

Pending before the Court is Petitioner's motion to direct the Clerk to add exhibit A, from the original petition, to the FAP, filed with the FAP on February 3, 2010. (Doc. 22.) Respondent has not filed opposition or notice of non-opposition to the motion.

Petitioner argues in the FAP that his Miranda rights were violated. (FAP 7.) In connection with that contention, Petitioner states that a copy of an exchange of words between Petitioner and a law enforcement officer who questioned him is attached as "exhibit A." (Id.) Petitioner submitted a CD in connection with the original petition that was similarly described and identified as "exhibit A." (Pet. 5c.)

The Court has obtained and reviewed the paper file in Petitioner's case, and notes that it includes a CD identified as "Exh. A (CD)."

The Court GRANTS Petitioner's motion insofar as he seeks to have the exhibit related to the FAP, as distinct from the original petition. However, the Court does not by this ruling intend to determine whether the exhibit is admissible or otherwise to consider the appropriate extent of the record in this case, which will be determined in connection with the Court's review of the merits of the petition.

Further, it is not clear to the Court that Respondent has been served with a copy of the exhibit, and it does not appear from a review of the table of contents of the answer to the FAP filed by Respondent on May 18, 2010, that Respondent addressed the admissibility of the CD. (Doc. 27, 2, 21-26.)

Accordingly, Respondent MAY FILE a brief addressing the admissibility of the CD no later than thirty (30) days after the date of service of this order.

Petitioner MAY FILE a responsive brief no later than thirty (30) days after the date of service on Petitioner of any brief filed by Respondent.

IT IS SO ORDERED.

20101030

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