Wheelock v. Kernan

Filing 132

THIRD ORDER RE RECORD. Signed by Judge Hamilton on 12/19/11. (pjhlc3, COURT STAFF) (Filed on 12/19/2011)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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THOMAS FRANKLIN WHEELOCK,
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Petitioner,

No. C 05-3878 PJH

v.
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For the Northern District of California

United States District Court

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THIRD ORDER RE RECORD
SCOTT M. KERNAN, Warden,
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Respondent.
_______________________________/
On September 27, 2011, this fully-briefed habeas case was reassigned from the

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Honorable Jeremy Fogel to the undersigned judge. On November 17, 2011, pursuant to

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the court’s request, respondent lodged portions of the record that the court found were

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missing, and the court appears to now have the entire record as lodged previously with

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Judge Fogel. However, the court’s review of the briefs and record revealed that the

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reporters transcripts provided to the court did not specifically include (or identify, as

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respondent now clarifies) the actual voir dire and responses from Juror No. 8. Instead, the

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only transcripts the court was able to locate regarding Juror No. 8's voir dire responses are

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from July 23, 2001, following jury selection, when the trial court noted for the record

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discussions that transpired at sidebar conferences during voir dire. R.T. 4077-78. Nor

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does the record include Juror No. 8's questionnaire, referenced in the trial court’s

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discussion at R.T. 4077-78.

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Because the court concluded that the voir dire transcripts and questionnaire are

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necessary for its adjudication of the related habeas claim, on December 12, 2011, the court

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ordered respondent to submit them to the court.

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On December 16, 2011, respondent notified the court that it does not have in its

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case file the “key” necessary to identify for the court Juror No. 8's voir dire responses or

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Juror No. 8's questionnaire. Respondent has requested those documents from the

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Alameda County District Attorney’s Office, but does not know at this time whether the

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documents are still in existence and/or how long it will take that office to locate the

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documents.

documents to this court’s adjudication of the related claim, the court will afford respondent

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additional time to locate the documents and/or information. Respondent is ORDERED to

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submit the documents and/or a status report advising the court regarding the status of the

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For the Northern District of California

Given the age of the case, the impending holidays, and the importance of the

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United States District Court

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Alameda County District Attorney’s Office’s search for the documents as soon as such

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information becomes available but no later than Friday, January 20, 2012.

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IT IS SO ORDERED.

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Dated: December 19, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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