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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICHAEL ROBERT HISCOX, 8 Petitioner, 9 vs. ORDER DENYING PETITIONER’S MOTION TO COMPEL AND EXTENDING TIME TO FILE TRAVERSE MIKE MARTEL, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 09-3477 PJH (PR) / 12 13 This is a habeas case filed pro se by a state prisoner. In the initial review order, the 14 court dismissed several of petitioner’s claims and ordered respondent to show cause why 15 the writ should not be granted as to the remainder. Respondent has filed an answer and a 16 memorandum of points and authorities in support of it, and has lodged the record with the 17 court. 18 The makeup of the record is the subject of a pending motion to compel. Petitioner 19 filed two motions to compel respondent to supplement the record. Respondent wrote to the 20 court saying that he had provided some items requested by petitioner and that others did 21 not appear to have been part of the record on appeal. The court denied the motions to 22 compel as moot, but told petitioner that he could renew his motion to compel if he had not 23 actually received the requested items. 24 Petitioner then filed another motion to compel, contending that certain items had not 25 been produced. In his opposition, respondent agreed to furnish four of the requested 26 items, but objected to being required to furnish three others. In reply, petitioner contended 27 that some of the documents respondent had agreed to produce were not sent to him, and 28 that the documents to which respondent objected should have been produced. 1 Respondent then wrote to the court stating that he was producing certain documents; 2 petitioner responded in a letter saying that he had received listed documents, and that he 3 was concerned that the produced documents be not only provided to him but also lodged 4 with the court as part of the record. Petitioner does not contend in his most recent letter 5 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 7 motion to compel (document number 16 on the docket) is DENIED as moot. His motion for 8 an extension of time to file his traverse (document number 18) is GRANTED. If petitioner 9 wishes to file a traverse, he shall do so within thirty days of the date this order is served. 10 The Attorney General is requested to ensure that the record lodged with this court 11 For the Northern District of California United States District Court 6 includes the entire record that was before the last state court to rule on each of the claims 12 raised here. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that in 13 reviewing the reasonableness of a state court's decision to which § 2254(d)(1) applies, a 14 district court may consider only on the record that was before the state court). 15 16 IT IS SO ORDERED. Dated: September 12, 2011. PHYLLIS J. HAMILTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 P:\PRO-SE\PJH\HC.09\HISCOX3477.EXT-TRAV.wpd 28 2

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