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Robert Fuentes v. Greg Lewis

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 7, 2012

ROBERT FUENTES,
PETITIONER,
v.
GREG LEWIS, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 25, 2010, petitioner filed a motion to compel state court records. Magistrate Judge John F. Moulds construed this motion as a motion to compel the California Department of Corrections and Rehabilitation to photocopy the entirety of petitioner's state court record, which Judge Moulds denied by order dated April 22, 2011. See ECF No. 12. Judge Moulds also denied petitioner's request to the extent it attempted to seek an order directing respondent to file the entire state court record. This request was denied on the ground that the respondent is statutorily required to lodge relevant portions of the record with his answer. See Rule 5 of the Rules Governing Section 2254 Cases.

Pursuant to Eastern District of California Local Rule 303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the Court finds that it does not appear that the magistrate judge's ruling was clearly erroneous or contrary to law. He properly construed petitioner's request and denied it without prejudice in light of respondent's statutory duty to submit the relevant portions of the state court record with his answer. Indeed, respondent has already submitted the following documents to the court.

1. Petitioner's October 17 and 24, 2007 jury verdicts (Lod. Doc.1);

2. An December 21, 2007 Abstract of Judgment (Lod. Doc. 2);

3. The California Court of Appeal's May 29, 2009 Opinion (Lod. Doc. 3);

4. Petitioner's June 3, 2009 petition for review filed in the California Supreme Court (S173630) and denied on August 12, 2009 (Lod. Doc. 4);

5. An August 17, 2009 Remittitur (Lod. Doc. 5); and

6. Petitioner's November 18, 2010 Petition for Writ of Habeas Corpus filed in the California Supreme Court (S188359) (Lod. Doc. 6).

Moreover, in his January 27, 2012 answer, respondent identifies the following documents that he will be lodge in a Supplemental Lodging (see Answer at 1 n.2):

7. The Clerk's Transcripts, Volumes 1 & 2 (Lod. Doc. 7);

8. The Reporter's Transcripts, Volumes 1-- 4 (Lod. Doc. 8);

9. Petitioner's Opening Brief on Appeal (Lod. Doc. 9);

10. Respondent's Brief (Lod. Doc. 10);

11. Petitioner's May 8, 2009, Petition for Writ of Habeas Corpus filed in the Sacramento County Superior Court (09F03933), and dismissed by the court on June 12, 2009 (Lod. Doc. 11);

12. Petitioner's June 29, 2009, Petition for Writ of Habeas Corpus filed in the California Court of Appeal (C062231), and denied on July 9, 2009 (Lod. Doc. 12);

13. Petitioner's March 4, 2010, Petition for Writ of Habeas Corpus filed in the Sacramento County Superior Court (10F01742) and denied on April 9, 2010 (Lod. Doc. 13);

14. Petitioner's October 18, 2010, Petition for Writ of Habeas Corpus filed in the California Court of Appeal (C066355), and denied on October 21, 2010 (Lod. Doc. 14); and

15. The Reporter's Augmented Transcript on Appeal (Lod. Doc 15).

Since these documents have been, or will be, provided, petitioner's request was properly denied. If, upon consideration of petitioner's writ for habeas relief, the Court finds that additional documents are necessary, it will order respondent to file them.

Based on the foregoing, IT IS HEREBY ORDERED that petitioner's Motion for Reconsideration (ECF No. 15) is DENIED.

20120207

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