Hansen v. Hornbeak

Filing 18

ORDER Requiring Respondent to File California Court of Appeal Opinion, signed by District Judge Lawrence J. O'Neill on 4/30/09: ddl for Respondent to comply with this Order 5/14/2009; Failure of Respondent to comply with this Order may be grounds for the imposition of sanctions on Respondent. See L.R. 11-110.(Hellings, J)

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A t the time of filing the Petition, Petitioner was incarcerated at Valley State Prison for W o m e n in C h o w c h illa , California. (Pet. 1.) Chowchilla is in Madera County, located within the jurisdictional boundaries of the United S t a t e s District Court for the Eastern District of California. 28 U.S.C. § 84(b). The Petition is properly filed in this Court, l o c a t e d in the district that Petitioner was in custody at the time of filing the Petition. See 28 U.S.C. § 2241(d).
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

BETTY HANSEN, Petitioner, vs. TINA HORNBEAK, Respondent. /

CASE NO. CV F 08-01697 LJO WMW HC ORDER REQUIRING RESPONDENT TO FILE CALIFORNIA COURT OF APPEAL OPINION

On October 22, 2008, Betty Hansen ("Petitioner"), a pro se California prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") in this Court1 challenging the denial of parole in 2007, amongst other claims. On March 17, 2009, Tina Hornbeak ("Respondent") filed an Answer to the Petition. On April 3, 2009, Petitioner filed a Traverse to the Answer. Rule 5(d)(3) of the Rules Governing Section 2254 Cases in the United States District Courts states that the "respondent must also file with the answer a copy of . . . the opinions and dispositive orders of the appellate court relating to the conviction or the sentence." 28 U.S.C. § 2254 R. 5(d)(3).

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Here, although Petitioner is not challenging her conviction or sentence, the facts utilized by the parole board in denying parole were "incorporate[d] by reference [to] the facts of the crime as set forth in the Court of Appeals, State of California, Fifth Appellate District document." (Pet. 28; see also id. 125.)2 It appears that the parole board did not read into the record the facts incorporated by reference. In addition, neither Respondent nor Petitioner included the California Court of Appeal opinion on direct review in their briefing. ORDER Accordingly, to assist the Court in ruling on the Petition, and for the foregoing reasons, Respondent is ORDERED to provide the California Court of Appeal opinion that was incorporated by reference at the 2007 parole board hearing within fourteen (14) days of the date this Order is filed. See 28 U.S.C. § 2254 R. 5(d)(3). Failure of Respondent to comply with this Order may be grounds for the imposition of sanctions on Respondent. See L.R. 11-110.

IT IS SO ORDERED. Dated: b9ed48 April 30, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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F o r ease of reference, the Court utilizes the CM/ECF pagination from the Petition.

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