Zapien v. Sisto

Filing 32

ORDER Regarding Respondent's Request for Order to Show Cause Regarding Dismissal of Claim Five 29 , signed by Magistrate Judge Dennis L. Beck on 5/16/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SALVADOR ZAPIEN,

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1:08-cv-01988-DLB (HC)

Petitioner,

ORDER REGARDING RESPONDENT’S
REQUEST FOR ORDER TO SHOW CAUSE
REGARDING DISMISSAL OF CLAIM FIVE

v.

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[Doc. 29]
D.K. SISTO,

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Respondent.
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/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to
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the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
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On January 19, 2011, the Court directed Respondent to file a response to the Third
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Amended Petition. After receiving an extension of time, on April 21, 2011, Respondent filed a
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request for an order to show cause regarding dismissal of Claim Five. Petitioner filed an
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opposition on May 5, 2011.
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DISCUSSION
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Respondent requests that the Court issue a order to show cause regarding Claim Five of
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the Third Amended Petition in which Petitioner challenges the trial court’s denial of his right to
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self-representation. Respondent claims that because Petitioner provided only portions of the
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transcript of the state court’s Marsden hearing, Petitioner has failed to provide this Court with
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sufficient evidence to make out a prima facie case on the merits.
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Rule 5 of the Rules Governing Section 2254 Cases, the state must indicate what

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transcripts are available and what proceedings have been record but were not transcribed. In

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addition, if and when an answer is filed, the government must attach any portions of the

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transcript it deems relevant. The judge may thereafter direct Respondent to submit other portions

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of the transcripts or parts of untranscribed recordings be transcribed and furnished. If the

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transcript cannot be obtained, Respondent is permitted to provide a narrative summary of the

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evidence.

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Pursuant to Rule 5, the Court will not place the burden on Petitioner to submit a complete

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copy of the Marsden transcript;1 rather, the burden is on Respondent. If Respondent is unable to

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obtain a copy of said transcript because it is filed under seal, the proper remedy is to seek an

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order by this Court directing the state court to furnish such transcripts to be filed under seal in

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this Court.

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Based on the foregoing, it is HEREBY ORDERED that Respondent’s request for an order
to show cause regarding Claim Five is DENIED.
IT IS SO ORDERED.

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Dated:

May 16, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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The burden to submit the court with portions of the record is on Petitioner only if he challenges the
sufficiency of the evidence. 28 U.S.C. § 2254(f).

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