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Raymond Christian Foss v. Mike Martel

June 10, 2011

RAYMOND CHRISTIAN FOSS, PETITIONER,
v.
MIKE MARTEL, WARDEN, RESPONDENT.



ORDER

On February 15, 2011, petitioner filed a motion pursuant to 28 U.S.C. § 2250 seeking an order directing "the clerk to furnish Petitioner with the 'relevant' documents Respondent has lodged with this Court . . . ." On February 23, 2011, plaintiff filed a motion for reconsideration of the undersigned's February 10, 2011 order denying plaintiff's request for an order to respondent to lodge the entire state court record and to serve a photocopy of the entire record on petitioner. On March 8, 2011, plaintiff filed a motion for 90-day extension of time to file a traverse after receipt of photocopies of lodged documents.

In the petition pending before the court, petitioner presents eleven grounds for relief pursuant to 28 U.S.C. § 2254: (1) violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) false evidence; (3) vindictive prosecution; (4) Fourth Amendment violation; (5) improper exclusion of evidence; (6) erroneous admission of evidence; (7) ineffective assistance of counsel; (8) prosecutorial misconduct; (9) denial of hearing and right to counsel on state petition for habeas corpus; (10) due process violation on direct appeal; and (11) cumulative error.

At issue here are two matters. First, is respondent required to lodge all transcripts in the underlying state action? Second, is petitioner entitled to a photocopy of all lodged documents at government expense?

A. Lodgment of Entire State Court Record

In response to the first question, the court looks to Rule 5 of the Rules Governing Section 2254 Cases for guidance. Rule 5 provides that a respondent must submit with his or her answer the following: (1) a list of available transcripts of pretrial, trial, sentencing or post-conviction proceedings; a list of proceedings that were recorded but not transcribed; and portions of the transcripts that respondent considers relevant. See Rule 5(c). Respondent must also lodge briefs on appeal and opinions. See Rule 5(d). If, upon request by petitioner or upon examination of the pleadings and the lodgments filed by respondent, the court deems it necessary to review portions of transcripts not submitted, it may order that the respondent furnish them.

On February 10, 2011, the undersigned denied petitioner's motion for an order directing respondent to lodge the entire state court record. Petitioner was informed that respondent is not required to lodge the entire state court record, only those portions that he considered relevant to contest petitioner's allegations. See Rule 5(c); Doc. No. 47. In his motion for reconsideration and pursuant to the 1976 Advisory Committee Notes, petitioner moves the court for an order requiring respondent to provide the entire record of the state court proceedings. Petitioner is concerned that without the entire record, the court will be unable to adequately examine petitioner's allegations.

Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). The Local Rules provide that when filing a motion for reconsideration, a party must show "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." Local Rule 230(j).

Here, petitioner presents no new additional facts or circumstances justifying reconsideration. Petitioner's concern that the court is unable to analyze his claims without the entire record is well-taken, but at this stage in these proceedings, premature. At this procedural posture, the court is not in a position to consider the merits of the petition pending before it and, thus, is not in a position to determine which lodgments are or are not relevant. Moreover, the court has reviewed the lodgments filed by respondent with his answer and the nearly 2000 pages filed by petitioner with his petition. The court notes that there is significant overlap in terms of the portions of the record that petitioner seeks to have lodged by respondent and those already filed by petitioner.

Therefore, the motion for reconsideration will be denied. The court will, however, require strict compliance with Rule 5. Thus, respondent shall submit within fourteen days of this date of this order a list of available transcripts of pretrial, trial, sentencing or post-conviction proceedings; a list of proceedings that were recorded but not transcribed; and all briefs on appeal and opinions, if he has not done so already. Furthermore, if, upon consideration of the merits of the petition, the court deems that additional transcripts or records are necessary, it will order that respondent lodge them forthwith.

B. Photocopies of Lodged Record

As to the second question pending before the court, petitioner was informed on February 10, 2011 that there is no constitutional or statutory right to a free copy of the state court record on collateral review. Petitioner nonetheless filed a second motion for a photocopy of the entire record In his motion for reconsideration, petitioner argues that he is entitled to service at respondent's expense of all documents and exhibits lodged with respondent's answer. Alternatively, petitioner argues that he is entitled to photocopies pursuant to 28 U.S.C. § 2250.

1. Service by Respondent

Initially, the court must determine whether respondent is required to serve on petitioner a copy of the lodged documents. In support of his argument that respondent is so required, petitioner cites to numerous rules, including Rules 5 and 11 of the Rules Governing Section 2254 Cases; Federal Rules of Civil Procedure 5(a)(1)(B) and 12(a)(1)(B); and Local Rules 135(c) and (d). None of these rules, however, support petitioner's argument that he is entitled to a copy of the lodged record. Instead, they state only that respondent "shall attach to the answer parts of the transcript that the respondent considers relevant," Rule 5(c); that "a pleading filed after the original complaint" "must be served on every party," Fed. R. Civ. P. 5(a)(1)(B); that "an answer to a counterclaim or cross-claim [must be served] within 21 days after being served with the pleading that states the counterclaim or cross-claim," Fed. R. Civ. P. 12(a)(1)(B); and that "all documents submitted to the Court shall be served upon all parties to the action," Local Rule 135(d) with reference to Fed. R. Civ. P. 5(a).

The gravaman of plaintiff's argument is that the lodged documents should be construed as incorporated into the answer, thus necessitating service by respondent upon petitioner. Petitioner relies on case law from the Third and Fourth Circuits to argue that the entire record, including the answer, should be served upon him. See Thompson v. Greene, 427 F.3d 263 (4th Cir. 2005); Pindale v. Nunn, 248 F. Supp. 2d 361 (D.N.J. 2003). The Fifth Circuit reached the same conclusion, limited by the caveat the respondent is only required to serve on petitioner lodgments and exhibits that are, in fact, attached to and/or filed with the answer. See Sixta v. Thaler, 615 ...


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