Ortiz

Filing 32

ORDER REGARDING PETITIONER'S LEGAL FILES re 31 - Signed by JUDGE SUSAN OKI MOLLWAY on 2/13/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LARRY JAMES ORTIZ,
#A0053511,

)
)
)
Petitioner,
)
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vs.
)
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JOSEPH TAYLOR,
)
)
Respondent.
)
_________________________ )

CIV. NO. 16 000259 SOM/KSC
ORDER REGARDING
PETITIONER’S LEGAL FILES

ORDER REGARDING PETITIONER’S LEGAL FILES
On February 13, 2017, the court held a second
hearing on Respondent’s contention that Petitioner’s
habeas corpus action brought under 28 U.S.C. § 2254 was
untimely.

It is apparent that there is some confusion

regarding the court’s previous orders and the parties’
responsibilities in supporting their positions.
First, while the court has no objection to
Petitioner’s presence in court, the court did not, at
the time it scheduled the Preliminary Hearing for
February 6, 2017, expect that Petitioner would be flown
from Arizona to Hawaii to attend that hearing in
person.

See ECF No. 21.

To the contrary, pursuant to

the Local Rules for the District of Hawaii, the court

expected Petitioner to appear through video or
telephone conference.

See Local Rule LR99.16.1.

Petitioner’s continued presence in Hawaii is not
required, but the court leaves that issue to
Respondent’s discretion.

This court only notes that it

never required Petitioner’s physical presence in Hawaii
and has conducted many other hearings with prisoners
who have participated by telephone or videoconference.
Second, having brought Petitioner to Hawaii,
Respondent should have ensured that Petitioner’s legal
documents accompanied him.

Neither Respondent nor

Assistant Warden Ben Griego adequately explained why
Petitioner was given some but not all of his legal
documents when he was transported to Hawaii.

The court

does not know whether Petitioner requires all of his
boxes now in storage in Arizona, but his complaint that
he is unable to support his equitable tolling claims
without his documents appears reasonable.
Accordingly, while Petitioner remains in Hawaii,
which the court is not requiring, he must have access
to his legal files.

Respondent is ORDERED to ensure
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that prison officials deliver Petitioner’s legal
materials to him in Hawaii on or before February 27,
2017.

To be clear, prison officials need not send all

of Petitioner’s property to Hawaii.
legal materials are required.

Rather, only his

If, however, separating

Petitioner’s legal and nonlegal property might give
prison authorities unauthorized access to Petitioner’s
privileged or confidential materials outside of
Petitioner’s presence, Respondent must (1) notify this
court in writing within three days of this Order, and
(2) propose a solution to such issue.
Third, if Respondent intends to rely on statements
by prison officials or others, such statements must be
filed under penalty of perjury.

If Respondent intends

to rely on records, they must be properly
authenticated.

See Rule 7, Rules Governing Section

2254 Cases in the United States District Courts.
The continued hearing set for March 17, 2017, will
address the timeliness of Petitioner’s request for
relief under 28 U.S.C. § 2254.

Petitioner appears to

be arguing that the limitations period should be
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equitably tolled, so Respondent is directed to address
that matter.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii; February 13, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Ortiz v. Taylor, 1:16-00259 SOM/KSC; OSCs Hab 2016 Ortiz som 16 259 (2d hrg

illit.)

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