Wood v. Gastelo

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 04/21/17 ordering respondent's request 22 is granted. If petitioner possesses a copy of the sealed Marsden hearing transcript, and is able to provide it. petitioner shall provide a copy o f the transcript to respondent within 30 days from the date of this order. Within 30 days from the date of this order, petitioner file a notice with the court indicating whether or not he has provided the Marsden hearing transcript to respondent. The briefing requirements set forth in the 4/14/17 order are suspended, and both parties are relieved of their obligation to file briefing pending further order of court. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN RANDOLPH WOOD,

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No. 2:16-cv-2621 MCE KJN P

Petitioner,
v.

ORDER

JOSIE GASTELO, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding in forma pauperis and without counsel.

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Respondent requested an order suspending the briefing schedule pending submission of the trial

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record, and asks the court to direct petitioner to provide the transcript from the sealed Marsden

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hearing in state court, which petitioner cited in the petition (ECF No. 1 at 108). If petitioner does

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not have a copy of the sealed Marsden hearing transcript, respondent seeks a finding from this

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court that the hearing transcript is potentially relevant, requiring an order that respondent produce

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the Marsden hearing transcript. (ECF No. 22 at 2, citing 28 U.S.C. § 2254(f).) Because the

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Marsden hearing was confidential, and the transcript sealed by the state court, respondent cannot

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obtain a copy absent petitioner’s express or implied waiver. (ECF No. 22 at 1 n.1.)

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In addition to citing the confidential Marsden hearing transcript, petitioner raised

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ineffective assistance of counsel claims implicating the state court’s ruling on petitioner’s

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Marsden motion. Thus, if petitioner possesses a copy of the sealed transcript, he is directed to
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provide respondent with a copy of the Marsden hearing transcript within thirty days from the date

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of this order. No later than thirty days from the date of this order, petitioner shall file a notice

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with this court indicating whether or not he has provided the Marsden hearing transcript to

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respondent, or whether petitioner does not have a copy of such transcript, or is otherwise unable

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to provide a copy. If petitioner has a copy of the Marsden hearing transcript, providing such copy

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to respondent will expedite briefing in this matter.

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In the meantime, the briefing requirements set forth in the April 14, 2017 order are

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suspended. A new scheduling order will issue once the Marsden hearing transcript has been

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located and provided to respondent.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Respondent request (ECF No. 22) is granted;

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2. If petitioner possesses a copy of the sealed Marsden hearing transcript and is able to

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provide it, petitioner shall provide a copy of the transcript to respondent within thirty days from

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the date of this order;

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3. Within thirty days from the date of this order, petitioner file a notice with the court
indicating whether or not he has provided the Marsden hearing transcript to respondent; and
4. The briefing requirements set forth in the April 14, 2017 order are suspended, and both

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parties are relieved of their obligation to file briefing pending further order of court.

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Dated: April 21, 2017

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/cw/wood2621.tra

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