Hiscox v. Martel

Filing 22

ORDER DENYING PETITIONER'S MOTION TO COMPEL AND EXTENDING TIME TO FILE TRAVERSE by Judge Phyllis J. Hamilton denying as moot 16 Motion to Compel; granting 18 Motion for Extension of Time to File (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICHAEL ROBERT HISCOX,

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Petitioner,

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vs.

ORDER DENYING
PETITIONER’S MOTION TO
COMPEL AND EXTENDING
TIME TO FILE TRAVERSE

MIKE MARTEL, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 09-3477 PJH (PR)

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This is a habeas case filed pro se by a state prisoner. In the initial review order, the

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court dismissed several of petitioner’s claims and ordered respondent to show cause why

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the writ should not be granted as to the remainder. Respondent has filed an answer and a

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memorandum of points and authorities in support of it, and has lodged the record with the

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court.

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The makeup of the record is the subject of a pending motion to compel. Petitioner

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filed two motions to compel respondent to supplement the record. Respondent wrote to the

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court saying that he had provided some items requested by petitioner and that others did

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not appear to have been part of the record on appeal. The court denied the motions to

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compel as moot, but told petitioner that he could renew his motion to compel if he had not

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actually received the requested items.

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Petitioner then filed another motion to compel, contending that certain items had not

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been produced. In his opposition, respondent agreed to furnish four of the requested

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items, but objected to being required to furnish three others. In reply, petitioner contended

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that some of the documents respondent had agreed to produce were not sent to him, and

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that the documents to which respondent objected should have been produced.

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Respondent then wrote to the court stating that he was producing certain documents;

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petitioner responded in a letter saying that he had received listed documents, and that he

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was concerned that the produced documents be not only provided to him but also lodged

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with the court as part of the record. Petitioner does not contend in his most recent letter

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that he has not received any documents that are properly part of the record.
Because it appears that petitioner has received the requested documents, his

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motion to compel (document number 16 on the docket) is DENIED as moot. His motion for

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an extension of time to file his traverse (document number 18) is GRANTED. If petitioner

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wishes to file a traverse, he shall do so within thirty days of the date this order is served.

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The Attorney General is requested to ensure that the record lodged with this court

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For the Northern District of California

United States District Court

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includes the entire record that was before the last state court to rule on each of the claims

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raised here. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that in

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reviewing the reasonableness of a state court's decision to which § 2254(d)(1) applies, a

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district court may consider only on the record that was before the state court).

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IT IS SO ORDERED.
Dated: September 12, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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