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Terry Bemore v. Michael Martel

July 5, 2011

TERRY BEMORE,
PETITIONER,
v.
MICHAEL MARTEL, WARDEN OF SAN QUENTIN STATE PRISON, RESPONDENT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

DEATH PENALTY CASE

ORDER:

GRANTING PETITIONER'S MOTION TO EXPAND THE RECORD [Doc. No. 89]

On June 8, 2011, Petitioner filed a Motion to Expand the Record under Rule 7 of the Rules Following 2254 Cases to include the declaration of Keith S. Cosby ["Ex. 66"]. On June 20, 2011, Respondent filed an Opposition to the Motion, and on June 29, 2011, Petitioner filed a Reply and an Amended Reply. Based on a review of the materials and pleadings, the Court finds this issue appropriate for disposition without oral argument. For the reasons discussed below, Petitioner's Motion to Expand the Record is GRANTED.

I. EXPANSION OF THE RECORD

Rule 7 of the Rules Governing Section 2254 Cases reads as follows:

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.

(b) Types of Materials. The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits also may be submitted and considered as part of the record.

(c) Review by the Opposing Party. The judge must give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.

Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that-- (A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found ...


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