Holmes v. Miller

Filing 86

ORDER signed by Magistrate Judge Kendall J. Newman on 08/04/16 denying 83 Motion to expand the record. The court will not entertain any further motions filed by either party prior to the evidentiary hearing on 8/22/16 absent extraordinary circumstances. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSICA HOLMES,

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Petitioner,

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No. 2:11-cv-2710 JKS KJN P

ORDER

v.
DEBORAH K. JOHNSON, Warden,

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Respondent.

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Petitioner is a state prisoner, proceeding through counsel, with a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. After a partial remand from the Court of Appeals

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for the Ninth Circuit, an evidentiary hearing is scheduled in this matter on August 22, 2016, on

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petitioner’s claim that her trial counsel rendered ineffective assistance during the plea bargain

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process.

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On August 2, 2016, petitioner filed a request to expand the record to include numerous

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documents related to the past performance of her trial counsel in this case and in other matters

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with which trial counsel was involved. See ECF No. 83-1. See Rule 7 of the Rules Governing

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Section 2254 Cases in the United States District Courts (if a habeas petition is not dismissed “the

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judge may direct the parties to expand the record by submitting additional materials relating to the

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petition.”). Petitioner argues that expansion of the record to include these documents would

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“assist this Court in making findings of fact concerning petitioner’s allegations.” ECF No. 83 at

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3.

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After careful review, the court does not find good cause to order expansion of the record

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to include the documents attached to petitioner’s motion to expand. The attached materials are

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beyond the scope of the limited remand issued by the Ninth Circuit in this case. As petitioner’s

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current counsel has previously been advised, he will be granted limited leeway at the evidentiary

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hearing to explore the content of trial counsel’s conversations with petitioner about the

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advisability of accepting or rejecting the prosecution’s plea offer. (ECF No. 62.) If testimony at

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the evidentiary hearing warrants further discovery on the issues before the court, petitioner may

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file a renewed motion for discovery after the evidentiary hearing has concluded. However, the

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court remains skeptical that further testimony will expand the scope of the limited issue on

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remand, as specified by the Ninth Circuit.

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Accordingly, IT IS ORDERED that petitioner’s August 2, 2016 request to expand the

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record (ECF No. 83) is denied. The court will not entertain any further motions filed by either

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party prior to the evidentiary hearing on August 22, 2016, absent extraordinary circumstances.

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Dated: August 4, 2016

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KJN:holmes2710.o(4)

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