Rogers v. Shepherd

Filing 32

ORDER signed by Magistrate Judge Dale A. Drozd on 02/03/09 ordering petitioner's 05/28/08 motion to expand the record 27 is denied. Petitioner's 05/28/08 request for judicial notice 28 is denied. (Plummer, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. MARK SHEPHERD, Respondent. / Petitioner is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 8, 2007, this court ordered respondent to file a response to the petition. On July 6, 2007, respondent filed a timely answer. On August 8, 2007, petitioner filed a traverse. This case is now submitted for decision and in due course, the court will issue its findings and recommendations. Pending before the court is petitioner's motion to expand the record. Therein, petitioner requests an order expanding the record in this federal habeas action to include: (1) the California State Bar records of Butte County Deputy District Attorney Leo Barnes and (2) the California State Bar records of defense attorney Grady Davis. Petitioner also requests that the court take judicial notice of these records. ///// 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ELLIOT LAMONT ROGERS, Petitioner, No. CIV S-05-1395 DAD P

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DAD:9 roge1395.exr

Under Rule 7 of the Rules Governing § 2254 Cases, the court may expand the record to include additional materials relevant to the merits of the petition. See Rule 7, Fed. R. Governing § 2254 Cases. In this case, petitioner seeks to include state bar records, which he represents will indicate that the California Bar suspended the attorneys in question at some points during their legal careers. However, petitioner has not demonstrated why these state bar records are relevant to the merits of his petition or to the resolution of his prosecutorial misconduct and ineffective assistance of counsel claims. Nor has petitioner explained how Attorney Barnes and Attorney Davis' conduct which resulted in their alleged suspensions from the practice of law , had any adverse affect on his criminal proceeding. Accordingly, petitioner's motion to expand the record and request for judicial notice of California State Bar records will be denied. For the reasons discussed above, IT IS HEREBY ORDERED that: 1. Petitioner's May 28, 2008 motion to expand the record (Doc. No. 27) is denied; and 2. Petitioner's May 28, 2008 request for judicial notice (Doc. No. 28) is denied. DATED: February 3, 2009.

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