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Confectioner v. Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 15, 2010

SAMUEL LOFTY CONFECTIONER, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

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

ORDER DENYING PETITIONER'S MOTION TO EXPAND THE RECORD

(Doc. 14)

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), Petitioner has 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 consent in signed writings filed by Petitioner on November 6, 2009, and January 14, 2010 (docs. 3, 7).

Pending before the Court is Petitioner's motion for expansion of the record, which was filed in this Court on August 25, 2010. No opposition to the motion has been filed.

Petitioner is a probationer. His petition concerns several errors allegedly committed by the state trial court in connection with Petitioner's conviction of committing a lewd act upon a child and oral copulation (Cal. Pen. Code §§ 288(c)(1) and 288a(b)(1)).

In the answer filed on November 9, 2010, Respondent addresses Petitioner's claims to the extent they are argued to have been exhausted, and to the extent they are contended not to have been exhausted, Respondent argues that they clearly do not present colorable or cognizable federal claims. Respondent states in the answer that within a week, he will lodge or file a state court record consisting of the clerk's and reporter's transcript on appeal, an augmented appellate transcript, the appellate briefing, and the rulings of the state courts, which this Court understands to include the unpublished appellate decision of the California Court of Appeal and the denial of review by the California Supreme Court. There is no indication in the papers before the Court that any additional record is necessary for this Court to render a decision on the merits of the petition.

In the motion, Petitioner asks that the record be expanded to include "any and all materials deemed relevant by the court for a just determination of the merits of the petition," and "letter predating the filing of the petition in this court, as well as documents, exhibits, affidavits, and answers under oath to written interrogatories propounded by this court." (Mot. 1-2.)

Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) permits a judge to direct the parties to expand the record by submitting additional materials relating to the petition. It is appropriate to expand the record to include materials not before a trial court where the purpose is to clarify the relevant facts and provide meaningful federal review of constitutional claims. Vasquez v. Hillery, 474 U.S. 254, 258, 260 (1986).

Because it appears that it is unnecessary to expand the record which the Respondent intends to submit to the Court, Petitioner's motion to expand the record is DENIED.

IT IS SO ORDERED.

20101115

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