Cervantes v. Sherman

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/03/17 ordering the parties' request 17 is granted. The clerk is directed to forward the state court Marsden hearing transcript to respondent's counsel. Upon receipt, respondent shall furnish petitioner with a copy. The parties stipulated protective order ( 17 -1 at 1:25-2:2) is approved and the parties shall comply with that order in their use of handling of the transcript. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SALVADOR CERVANTES,

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Petitioner,

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v.

No. 2:16-cv-1837-EFB P

ORDER

SHREW SHERMAN,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. He asserts a claim of ineffective assistance of counsel. ECF No. 1. At

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respondent’s request, the court deferred briefing pending respondent’s receipt of a sealed

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Marsden1 hearing transcript from the state court, which may be relevant to petitioner’s claim in

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this action. ECF No. 10. A subsequent status report submitted by respondent states that

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respondent submitted a request to the California Court of Appeal for release of the sealed

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transcript. ECF No. 11. A copy of that request was not submitted with the status report and it is

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not clear whether respondent asked the state court to send the transcript to this court or to the

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parties in the state court proceeding. In any event, the California Court of Appeal responded by

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submitting a copy of the transcript to this court, along with a brief letter, stating, “Enclosed please

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People v. Marsden, 2 Cal. 3d 118 (1970).

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find a copy of the sealed Marsden transcript filed in this court on September 15, 2014, in the

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above case.” This court infers from the state court’s response to respondent’s request for release

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of the transcript that it has necessarily modified its sealing order to permit use of the transcript for

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these proceedings subject to a protective order. Accordingly, a copy of the transcript shall be

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made available to respondent and the terms of the stipulated protective order submitted by the

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parties are approved. The parties shall be bound by those terms and their use of the transcript

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shall comply with that order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The parties’ request (ECF No. 17) is granted. The Clerk is directed to forward the

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state court Marsden hearing transcript to respondent’s counsel. Upon receipt,

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respondent shall furnish petitioner with a copy.

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2. The parties’ stipulated protective order (ECF No. 17-1 at 1:25-2:2) is approved and the
parties shall comply with that order in their use and handling of the transcript.
DATED: May 3, 2017.

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