Marsala v. Lackner

Filing 60

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/02/15 denying 48 Motion to strike petitioner's affidavits. However, when the court considers the claims presented in petitioner's application for writ of habeas corpus, the affidavits will not be considered to the extent the court is barred from considering them by 28 USC 2254(d)-(e) and interpretive and controlling case law. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH AUGUST MARSALA,

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Petitioner,

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No. 2:13-cv-1614 CKD P

v.

ORDER

HEIDI LACKNER,

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Respondent.

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Respondent has filed a motion asking that affidavits submitted by petitioner in support of

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his petition for writ of habeas corpus be stricken. Respondent notes correctly that the original

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affidavits (ECF No. 43) are not signed under the penalty of perjury. However, petitioner cured

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this defect by submitting affidavits which are signed under the penalty of perjury. ECF Nos. 55

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& 56. Respondent also argues that the affidavits are barred from consideration pursuant to 28

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U.S.C. § 2254(d)-(e) in light of deference which must be paid by this court to the California

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Supreme Court’s denial of petitioner’s claims.
The court is aware of the limitations imposed upon the submission of new evidence by 28

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U.S.C. § 2254(d)-(e). However, until reviewing all of the briefing and other exhibits submitted

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with respect to petitioner’s application for writ of habeas corpus, the court cannot ascertain

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whether the affidavits are barred.

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/////

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Accordingly, IT IS HEREBY ORDERED that respondent’s motion to strike petitioner’s

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affidavits (ECF No. 48) is denied. However, when the court considers the claims presented in

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petitioner’s application for writ of habeas corpus, the affidavits will not be considered to the

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extent the court is barred from considering them by 28 U.S.C. § 2254(d)-(e) and interpretive and

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controlling case law.

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Dated: November 2, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mars1614.msa

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