Strawn v. Long et al

Filing 20

ORDER by Chief Judge Philip A. Brimmer on 11/17/2021, re: 17 Applicant's Request for Loan of All State Court Records, Transcripts, Physical Evidence is DENIED; 19 Respondents Request for Extension of Time to Answer is GRANTED for good cause shown. Respondents shall file an Answer to the § 2254 Application on or before December 20, 2021. ORDERED that Applicant may file a Reply within 30 days after the Answer is filed.(sphil, )

Case 1:21-cv-01897-PAB Document 20 Filed 11/17/21 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-01897-PAB
ANDRE STRAWN,
Applicant,
v.
JEFF LONG, Warden, Sterling Correctional Facility,
DEAN WILLIAMS, Executive Director, Colorado Department of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER
Applicant, Andre Strawn, has filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. The matters before the Court are Applicant’s Request
for Loan of All State Court Records, Transcripts, Physical Evidence [Docket No. 17] and
Respondents’ Request for Extension of Time to Answer. [Docket No. 19].
Applicant requests “the State court file and transcripts of all the proceedings
conducted in the state court and the physical evidence that will be cit[]ed by this court
on review and the Colorado Attorney General office to determine the errors in this
matter.” Docket No. 17 at 3. The motion will be denied.
Under 28 U.S.C. § 2250, “[i]f on any application for a writ of habeas corpus an
order has been made permitting the petitioner to prosecute the application in forma
pauperis, the clerk of any court of the United States shall furnish to the petitioner without
cost certified copies of such documents or parts of the record on file in his office as may

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be required by order of the judge before whom the application is pending.” This statute
does not apply to Applicant because he has not been granted leave to proceed in forma
pauperis; he has paid the $5.00 filing fee. See Docket No. 1.
Even if the statute applies, a habeas petitioner must first make a specific showing
of need to obtain a copy of the record. See Hines v. Baker, 422 F.2d 1002, 1006 at n.9
(10th Cir. 1970) (collecting cases); see also Humphreys v. U.S. Parole Comm’n, 977
F.2d 595 (10th Cir. 1991) (unpublished) (affirming district court’s denial of habeas
petitioner’s motion seeking copies of records because the motion failed to include “a
showing of need for copies of the documents”). A § 2254 petitioner “does not have a
constitutional right to access a free transcript in order to search for error.” Ruark v.
Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (citing Hines, 422 F.2d at 1006-07).
Applicant makes vague allegations that he needs the state court transcripts in
order to cite the “errors” upon which his due process and ineffective assistance of
counsel claims are premised. Docket No. 17 at 5. “A habeas proceeding is not a
fishing expedition.” See Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007). Applicant fails
to explain why a copy of the state court record is necessary to establish that he is
entitled to federal habeas relief. “The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter
‘adjudicated on the merits in State court’ to show that the relevant state-court ‘decision’
(1) ‘was contrary to, or involved an unreasonable application of, clearly established
Federal law,’ or (2) ‘was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.’” Wilson v. Sellers, 138 S. Ct.
1188, 1191 (2018) (citing 28 U.S.C. § 2254(d)).
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Finally, to the extent Applicant requests discovery under Rule 6 of the Rules
Governing Section 2254 Cases in the United States District Courts, Docket No. 17 at 3,
the requisite showings have not been made. Leave of court is required for discovery,
which is available upon a showing of good cause. Discovery requests must be
accompanied, too, by the proposed interrogatories and requests for admission, or a
specific list of the documents sought. See Habeas Rule 6(b). Applicant’s request for
discovery fails to show good cause, fails to include any proposed interrogatories or
requests for admission, and fails to specify the documents sought.
For these reasons, it is
ORDERED that Applicant’s Request for Loan of All State Court Records,
Transcripts, Physical Evidence [Docket No. 17] is DENIED. It is further
ORDERED that Respondents Request for Extension of Time to Answer [Docket
No. 19] is GRANTED for good cause shown. Respondents shall file an Answer to the
§ 2254 Application on or before December 20, 2021. It is further
ORDERED that Applicant may file a Reply within 30 days after the Answer is
filed.
DATED November 17, 2021.
BY THE COURT:

___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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