Diaz v. Lewis

Filing 43

ORDER signed by Magistrate Judge Allison Claire on 12/3/2014 ORDERING counsel for respondent to file (or lodge in paper) a copy of the CA Supreme Court's order dated 3/14/2012, denying Mr. Diaz's habeas petition, within 30 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HUMBERTO DIAZ,

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No. 2:12-cv-1095 WBS AC

Petitioner,
v.

ORDER

G. D. LEWIS,
Respondent.

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This habeas corpus action was submitted for decision with the filing of the traverse on

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October 18, 2013. It has come to the attention of the court that the state court record lodged by

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respondent does not include a copy of the California Supreme Court’s March 14, 2012 order

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denying habeas relief. Instead, respondent has submitted a docket report from the California

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Supreme Court, indicating that the petition was denied on March 14, 2012. Lodged Doc. 16. In

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the experience of the undersigned, it is common practice in federal habeas cases for Deputies

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Attorney General to lodge California Supreme Court docket reports in lieu of the actual orders

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denying habeas petitions. This practice does not permit the court to perform the review required

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by 28 U.S.C. § 2254.

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A docket report is not an order and does not conclusively establish the contents of the

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orders it references. A docket report summarizes the procedural history of a case. It documents

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the fact that relief was denied, but does not establish to the court’s satisfaction whether or not the
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denial was without comment or citation. The presence or absence of any stated reason for denial,

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no matter how briefly identified, or any citation to authority, has potential consequences for

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review under § 2254. See Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (focus of 2254(d)

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review is “what a state court. . . did”); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991) (where

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state court’s denial is unexplained, federal court must “look through” it to last reasoned decision);

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Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc) (where state court’s denial is

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explained, federal court’s analysis is limited to its actual reasoning and analysis); Cone v. Bell,

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556 U.S. 449, 472 (2009) (where state court denial rests on procedural ground, federal court

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conducts de novo review of merits).

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The undersigned is aware from experience that California Supreme Court docket sheets

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generally do reflect the content of orders denying habeas relief, including any citation to a

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procedural bar. However, the docket reports are not the source documents. In light of this court’s

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duty to review what the state court actually did, the lodged state court record must include all

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state court orders denying relief. A docket report or similar substitute is not sufficient.

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Accordingly, counsel for respondent is HEREBY ORDERED to file (or lodge in paper) a

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copy of the California Supreme Court’s order dated March 14, 2012, denying Mr. Diaz’s habeas

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petition, within 30 days of this order.

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DATED: December 3, 2014

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