Kerestesy v. State of California

Filing 18

ORDER signed by Magistrate Judge Allison Claire on 6/29/2015 ORDERING counsel for respondent to file (or lodge in paper), within 30 days, a copy of the CA Supreme Court's order dated 11/25/2014, denying petitioner's habeas petition.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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XAVIER KERESTESY,

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Petitioner,

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No. 2:15-cv-0545 MCE AC P

v.

ORDER

THE ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA,
Respondent.

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Briefing in this habeas corpus action is still proceeding. However, it has come to the

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attention of the undersigned that the state court record lodged by respondent does not include a

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copy of the California Supreme Court’s November 25, 2014 order denying petitioner 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. See ECF No. 12 at 131. Respondent requests

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that the court take judicial notice of the docket report as evidence that the California Supreme

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Court summarily denied relief in this case on the given date. See id. at 2 n.1. Respondent states

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that it is the normal practice of the California Supreme Court to not routinely serve habeas denial

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orders on the California Attorney General in cases in which respondent has not appeared, and “to

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not send copies of the such (sic) orders to the Attorney General later, despite any request.” Id.

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The undersigned appreciates that the Attorney General’s Office is not served with orders

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in cases in which it has not appeared, such as state habeas corpus proceedings in which no

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informal briefing has been ordered. However, counsel for respondent is not without means to

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obtain access to the underlying orders, which are contained in court files that are open to public

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inspection. If the fact of the denial was what mattered in this court, judicial notice based on the

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docket entry would be perfectly appropriate. However, this court’s review under 28 U.S.C. §

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2254(d) must proceed on the basis of the contents of the denial order itself, not on the fact of its

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existence. In this context, judicial notice of the docket entry cannot substitute for submission and

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review of the actual order at issue.

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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 citations to a

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procedural bar. But a docket entry 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 the 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 November 25, 2014, denying petitioner’s habeas petition.

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DATED: June 29, 2015

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