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Michael Foster v. Kathleen Allison

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 8, 2011

MICHAEL FOSTER, PETITIONER,
v.
KATHLEEN ALLISON, RESPONDENT.

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

ORDER DENYING MOTION FOR DISCOVERY WITHOUT PREJUDICE [Doc. 21]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On January 11, 2011, Petitioner filed a motion for discovery. Petitioner requests the Court to direct Respondent to provide him with a full and complete copy of the transcript of the evidentiary hearing that took place in the Kings County Superior Court on collateral review.

Petitioner states that he never received a copy of the transcripts of an evidentiary hearing that took place in the Kern County Superior Court. Petitioner references a letter he received from counsel informing Petitioner he was longer representing him. Despite this reference, Petitioner did not attach a copy of said letter. Thus, the Court cannot determine what effort has been made by Petitioner to obtain a copy of the transcript from his counsel.

Moreover, in United States v. MacCollom, 426 U.S. 317 (1976), the Supreme Court upheld 28 U.S.C. § 753(f), which allowed a free copy of transcripts for a federal habeas petitioner who demonstrated the petition was not frivolous and the transcript was necessary to its disposition. Id. at 326. In addition, transcripts are only provided at government expense upon a showing of a particularized need for them, which is necessary to decide issues in a non-frivolous pending case. Id. at 323-330; see also United States v. Van Poyck, 980 F.Supp. 1108, 1111 n.2 (C.D. Cal. 1997).

At this juncture, the Court cannot determine if a copy of the evidentiary hearing transcript is necessary to resolve the claims in the petition. However, if after a thorough review, the Court determines the transcript is necessary, it can order a copy of the transcript to be submitted to this Court. Accordingly, Petitioner's motion for a copy of the evidentiary hearing transcript is DENIED without prejudice.

IT IS SO ORDERED.

icido3

20110208

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