McConnell v. Warden, CSP Solano

Filing 42

ORDER signed by Magistrate Judge Kendall J. Newman on 3/5/2015 PARTIALLY GRANTING petitioner's 37 motion ; within 7 days, respondent shall contact the Plumas County Superior Court to obtain copies of petitions for writs of habeas corpus fil ed by petitioner and rulings thereon, if any; upon receipt of such documents, respondent shall lodge them with this court, and shall advise the court whether respondent intends to file an amended answer or stand on the previously-filed answer; in the alternative, if no such documents exist, respondent shall forthwith file such notice; and petitioner's obligation to file a traverse is suspended until further order of court. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM R. MCCONNELL,

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Petitioner,

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No. 2:13-cv-2517 JAM KJN P

v.

ORDER

GARY SWARTHOUT,

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Respondent.

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Petitioner is a state prisoner, proceeding without counsel. On January 16, 2015, petitioner

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filed a motion for order to correct and augment the record. Petitioner contends that respondent

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failed to lodge “critical portions of the record,” specifically, the complete record of habeas corpus

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proceedings in the Superior Court. Petitioner claims that the failure of respondent to provide the

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“Superior Court’s two separate, and detailed decisions that denied” petitioner’s habeas relief

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addressing claims 1, 2, and 3 in the instant petition, deprived petitioner an opportunity to argue

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that such reasoned decisions were contrary to, or an unreasonable application of federal law.

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(ECF No. 37 at 2.) Petitioner did not provide a superior court case number or provide copies of

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any filings or rulings in or by the Plumas County Superior Court on a petition for writ of habeas

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corpus.

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However, the Rules Governing Section 2254 Cases provides that the answer “must also
indicate what transcripts . . . are available,” and respondent must attach “parts of the transcript
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that the respondent considers relevant.” Rule 5(c), 28 U.S.C. foll. § 2254. “The judge may order

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that the respondent furnish other parts of existing transcripts.” Id.
On January 22, 2015, the court issued a briefing order on petitioner’s motion to augment

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or correct the record, but respondent did not file an opposition or otherwise respond to

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petitioner’s motion. Respondent’s motion to dismiss did not recount the filing of petitions for

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writs of habeas corpus in the Plumas County Superior Court. (ECF No. 15.) Neither notice of

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lodging filed by respondent reflects the lodging of a petition for writ of habeas corpus or denial of

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such petition by the Plumas County Superior Court. (ECF Nos. 16, 30.) The court has reviewed

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the documents lodged by respondent, and there is no indication that petitioner filed a petition for

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writ of habeas corpus in the Plumas County Superior Court. The findings and recommendations

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issued on August 12, 2014, did not reflect the filing of such a petition (ECF No. 26 at 2-3), and

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petitioner did not object to the background as articulated therein.

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However, in his answer, respondent does not affirmatively state that the Plumas County

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Superior Court was contacted and no petition for writ of habeas corpus was filed. (ECF No. 29.)

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In addition, respondent did not argue that any reasoned decision by the Plumas County Superior

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Court on such a petition for writ of habeas corpus was not relevant. (Id.) In any event, if

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petitioner filed petitions for writs of habeas corpus in the Plumas County Superior Court, and

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reasoned decisions on claims contained in the instant petition were issued by the Plumas County

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Superior Court, such documents are relevant and should be lodged herein. See Cannedy v.

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Adams, 706 F.3d 1148, 1158-59 (9th Cir. 2013) (holding that the “look through” doctrine1

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survives Harrington v. Richter, 131 S. Ct. 770 (2011)); Richter, 131 S. Ct. at 785 (stating that the

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presumption that a state court’s summary denial is an adjudication on the merits “may be

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overcome when there is reason to think some other explanation for the state court’s decision is

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more likely”).

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Where there is no reasoned decision from the state’s highest court, the Court “looks through” to
the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). “It
has long been the practice of federal habeas courts to “look through” summary denials of claims
by state appellate courts and review instead the last reasoned state-court decision.” Williams v.
Cavazos, 646 F.3d 626, 635 (9th Cir. 2011), overruled on other grounds by Johnson v. Williams,
133 S. Ct. 1088 (2013).
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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion (ECF No. 37) is partially granted;

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2. Within seven days from the date of this order, respondent shall contact the Plumas

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County Superior Court to obtain copies of petitions for writs of habeas corpus filed by petitioner

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and rulings thereon, if any;

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3. Upon receipt of such documents, respondent shall lodge them with this court, and shall

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advise the court whether respondent intends to file an amended answer or stand on the previously-

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filed answer; in the alternative, if no such documents exist, respondent shall forthwith file such

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notice; and

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4. Petitioner’s obligation to file a traverse is suspended until further order of court.
Dated: March 5, 2015

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/mcco2517.tran

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