Vasquez v. Gipson

Filing 22

ORDER signed by Magistrate Judge Allison Claire on 6/22/16 ORDERING counsel for respondent to file (or lodge in paper), within 30 days after the filing date of this order, a copy of the California Supreme Courts order dated January 23, 2013, denying petitioners habeas petition.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE FEDERICO VASQUEZ,

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No. 2:14-cv-0322 AC

Petitioner,
v.

ORDER

CONNIE GIPSON,
Respondent.

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It has come to the attention of the court that the state court record lodged by respondent

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does not include a copy of the California Supreme Court’s January 23, 2013 order denying habeas

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relief. Instead, respondent has submitted a docket report from the California Supreme Court,

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indicating that the petition was denied on that date. Lodged Doc. 9. This court’s review under 28

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U.S.C. § 2254(d) must proceed on the basis of the contents of the denial order itself, not on the

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fact of its existence. The practice of submitting the California Supreme Court docket reports does

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not permit the court to perform the review required by 28 U.S.C. § 2254.

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

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generally do accurately reflect the content of orders denying habeas relief, including any citations

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to a procedural bar. But a docket report is not an order, and it does not conclusively establish the

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

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It documents the fact that relief was denied, but does not establish to this court’s satisfaction the
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contents of the order denying relief. The presence or absence of any stated reason for denial, no

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matter how briefly identified, or any citation to authority, has potential consequences for review

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

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

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denial is unexplained, federal court must “look through” it to last reasoned decision); Frantz v.

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

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federal court’s analysis is limited to its actual reasoning and analysis); Cone v. Bell, 556 U.S.

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449, 472 (2009) (where state court denial rests on procedural ground, federal court conducts de

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novo review of merits). In light of this court’s duty to review what the state court actually did,

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the lodged state court record must include all state court orders denying relief. A docket report or

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similar substitute is not sufficient.

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

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within 30 days after the filing date of this order, a copy of the California Supreme Court’s order

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dated January 23, 2013, denying petitioner’s habeas petition.

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DATED: June 22, 2016

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