Ransom v. Warden Christensen
SUCCESSIVE REVIEW ORDER - IT IS ORDERED: Petitioners request for appointment of counsel (contained in the Amended Petition Dkt ( 8 ) is DENIED without prejudice. Within 120 days after service of the Petition, Respondent may file either of the followi ng: (1) a motion for summary dismissal or partial summary dismissal; or (2) an answer and brief, on the claims that were adjudicated on the merits by the Idaho Supreme Court. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOE FRED RANSOM,
Case No. 1:21-cv-00120-DCN
SUCCESSIVE REVIEW ORDER
On March 12, 2021, Petitioner Joe Fred Ransom filed a Petition for Writ of Habeas
Corpus, challenging Petitioner’s state court convictions, following a jury trial, of
kidnapping and rape. Pet., Dkt. 1. The Court reviewed the Petition, pursuant to 28 U.S.C.
§ 2243 and Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”). The
Court determined that the Petition was subject to dismissal and gave Petitioner an
opportunity to file an amended petition. Initial Review Order, Dkt. 7. Petitioner has now
done so. Am. Pet., Dkt. 8.
REVIEW OF AMENDED PETITION
Standard of Law for Review of Petition
As the Court stated in its Initial Review Order, federal habeas corpus relief under
28 U.S.C. § 2254 is available to petitioners who show that they are held in custody under
a state court judgment and that such custody violates the Constitution, laws, or treaties of
the United States. See 28 U.S.C. § 2254(a). The Court is required to review a habeas corpus
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petition upon receipt to determine whether it is subject to summary dismissal. Dismissal is
appropriate where “it plainly appears from the face of the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court.” Habeas Rule 4.
The Court construes the Amended Petition as alleging the following claims. 1 Claim
1 asserts that the evidence was insufficient to support Petitioner’s convictions. Am. Pet. at
Claim 2 alleges Sixth Amendment claims of ineffective assistance of trial counsel.
Claim 2.1 asserts that counsel failed to question some of Petitioner’s witnesses regarding
statements made to an investigator. Id. at 3. Claim 2.2 alleges ineffective assistance based
on counsel’s conversation with an investigator regarding Petitioner’s phone, during which
counsel determined to do “nothing” about the phone. Id. at 3–4. Claim 2.3 asserts that, after
the trial court denied Petitioner’s motion for acquittal, counsel “should have argued the
lack of evidence right then to the jury because the jury didn’t understand that.” Id. at 4.
In Claim 2.4, Petitioner alleges trial counsel ineffectiveness relating to a hearing on
the victim’s drug use, which “the Judge ruled we couldn’t bring … up.” Id. Petitioner
complains that his lawyer learned that the victim gave false statements, evidently at this
hearing. Id. at 4–5. Petitioner may be asserting that counsel improperly failed to pursue
these false statements as part of Petitioner’s defense. This claim also might be alleging a
If the Court’s construction of Petitioner’s claims is incorrect, Petitioner must inform the Court and
Respondent of any corrections within 28 days after entry of this Order. For ease of reference, the Court uses
numerical identifiers to Petitioner’s claims.
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complete denial of counsel in violation of the Sixth Amendment, given that Petitioner was
not present at the hearing and did not know about the hearing until much later. Id. at 4.
Claim 2.5 appears to assert ineffective assistance based on counsel’s advice
regarding a plea offer. Id. at 5 (“The prosecutor said he would drop all but agg assault and
20 years with 5 fixed. My lawyer said ‘the lab results from the rape test came back I read
them and I know you didn’t do it but you should take the deal because I’ve seen him win
with a lot less.’ Why is she a lawyer? I never understood what she said. These things never
Finally, Claim 3 asserts ineffective assistance of post-conviction counsel based on
counsel’s failure to obtain affidavits from Petitioner’s trial witnesses to support his postconviction claims. Id. at 6. Petitioner states that two witnesses “tried to give [counsel]
depositions,” but that counsel declined and stated that he would take depositions later,
“when the court granted” an evidentiary hearing. Id.
Petitioner may proceed on the Amended Petition to the extent that the claims (1) are
cognizable—meaning they actually can be heard—in a federal habeas corpus action, (2)
were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner. It is necessary for
the Court to review portions of the state court record to resolve preliminary procedural
issues, and it would also be helpful to receive briefing from Respondent. Therefore, the
Court will order the Clerk to serve a copy of the Amended Petition on counsel for
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Respondent, who may respond either by answer or pre-answer motion and who must
provide relevant portions of the state court record to this Court.
Potentially Applicable Standards of Law
Because Petitioner does not have a lawyer and because the Court finds that focused
briefing from the parties would be beneficial in this case, the Court provides the following
standards of law that might, or might not, be applicable to Petitioner’s case.
As stated earlier, federal habeas corpus relief is available if the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a) (emphasis added). That is, only federal claims may be raised in habeas corpus.
“[F]ederal habeas corpus relief does not lie for errors of state law,” Lewis v. Jeffers, 497
U.S. 764, 780 (1990), such as claims of error during state post-conviction proceedings,
Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam).
Additionally, a claim of ineffective assistance of post-conviction counsel is not
cognizable as an independent constitutional claim. Pennsylvania v. Finley, 481 U.S. 551,
554 (1987). For this reason, Claim 3 is subject to dismissal. However, as explained more
fully below, ineffectiveness of post-conviction counsel can constitute cause to excuse the
procedural default of a constitutional claim.
Exhaustion and Procedural Default
A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
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established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court. Id.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it because
of the state’s procedural rules, the claim is said to be procedurally defaulted. Gray v.
Netherland, 518 U.S. 152, 161–62 (1996). Procedurally defaulted claims include those
within the following circumstances: (1) when a petitioner has completely failed to raise a
claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to
fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho
courts have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
If a claim is procedurally defaulted, a federal court can consider the merits of the
claim only if the petitioner meets one of two exceptions. The petitioner asserting a
procedurally defaulted claim must make either (1) a showing of adequate legal cause for
the default and prejudice arising from the default, see Coleman, 501 U.S. at 731, or (2) a
showing of actual innocence, which means that a miscarriage of justice will occur if the
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claim is not heard in federal court, see Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray
v. Carrier, 477 U.S. 478, 488 (1986).
To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray, 477 U.S. at 488. To show
“prejudice,” a petitioner generally bears “the burden of showing not merely that the errors
[in his proceeding] constituted a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
Cause for the default may exist as a result of ineffective assistance of counsel. For
example, the failure on appeal to raise a meritorious claim of trial error may render that
claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n
certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for
review in state court will suffice.”). However, for ineffective assistance of trial or direct
appeal counsel to serve as cause to excuse the default of a claim, that ineffective assistance
claim must itself have been separately presented to the state appellate courts. Id. at 451
(“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default
of another claim can itself be procedurally defaulted.”) If the ineffective assistance asserted
as cause was not fairly presented to the state courts, a petitioner must show that an excuse
for that separate default exists, as well.
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A petitioner does not have a federal constitutional right to the effective assistance
of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551,
554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of counsel during a post-conviction action cannot serve as a basis for
cause to excuse a procedural default. Coleman, 501 U.S. at 752.
However, the Supreme Court established an exception to that general rule in
Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that, in limited circumstances,
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at
9. The Supreme Court has described and clarified the Martinez cause and prejudice test as
consisting of four necessary prongs: (1) the underlying claim of ineffective assistance of
trial counsel (“IATC”) must be a “substantial” claim; (2) the “cause” for the procedural
default consists of there being “no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review proceeding was the “initial”
collateral review proceeding where the IATC claim could have been brought; and (4) state
law requires that an IATC claim be raised in an initial-review collateral proceeding, or by
“design and operation” such claims must be raised that way, rather than on direct appeal.
Trevino v. Thaler, 569 U.S. 413, 423, 429 (2013).
If a petitioner cannot show cause and prejudice for his procedural default, he still
can bring the claim in a federal habeas petition if he demonstrates that failure to consider
the claim will result in a “fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S.
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at 496. This standard requires proof that a constitutional violation has probably resulted in
the conviction of someone who is actually innocent. Id. Actual innocence in this context
“means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S.
614, 623 (1998).
One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a
petitioner to seek federal habeas corpus relief within one year from “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Timeliness is determined on a claim-byclaim basis, rather than giving the petition as a whole a single limitations period. Mardesich
v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012) (“Therefore, we hold that AEDPA’s one-year
statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an
The one-year statute of limitations can be tolled (or paused) under certain
circumstances. AEDPA provides for tolling for all of “[t]he time during which a properly
filed application for State post-conviction or other collateral review ... is pending.” 28
U.S.C. § 2244(d)(2).
The statute of limitations can also be equitably tolled under exceptional
circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
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(internal quotation marks omitted). Further, like the issue of procedural default, AEDPA’s
statute of limitations is subject to an actual innocence exception, and a petitioner who
satisfies the actual innocence gateway standard may have otherwise time-barred claims
heard on the merits. McQuiggin v. Perkins, 569 U.S. 383, 393–94 (2013); Lee v. Lampert,
653 F.3d 929, 937 (9th Cir. 2011) (en banc).
Stay-and-Abey Procedures and Relation-Back of Amendments
Prior to the enactment of AEDPA, the Supreme Court had held that federal courts
could adjudicate a habeas petition only if all the claims in that petition were exhausted. See
Rose v. Lundy, 455 U.S. 509, 522 (1982). This doctrine of “total exhaustion” required that
a district court dismiss, without prejudice, any habeas petition that included even one
unexhausted claim. Id. The appropriate course, if a claim was unexhausted, was to dismiss
the petition without prejudice. Then, once the petitioner had exhausted the unexhausted
claims in state court, he could return to federal court and file a new habeas petition.
Alternatively, the petitioner could choose to “amend or resubmit the habeas petition to
present only exhausted claims to the district court.” Id. at 510.
The total exhaustion requirement became problematic with the passage of AEDPA,
which not only preserved that requirement, but also imposed a one-year statute of
limitations for federal habeas petitions. See 28 U.S.C. § 2244(d). As the Supreme Court
As a result of the interplay between AEDPA’s 1-year
statute of limitations and Lundy’s dismissal requirement,
petitioners who come to federal court with “mixed” petitions
run the risk of forever losing their opportunity for any federal
review of their unexhausted claims. If a petitioner files a timely
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but mixed petition in federal district court, and the district court
dismisses it under Lundy after the limitations period has
expired, this will likely mean the termination of any federal
Rhines v. Weber, 544 U.S. 269, 275 (2005).
To address this problem, the Supreme Court held in Rhines that a federal district
court has the discretion to stay a mixed habeas petition—a petition containing both
exhausted and unexhausted claims—to allow the petitioner to present the unexhausted
claims to the state courts and then later return to federal court for review of the perfected
petition. Id. at 277. The Ninth Circuit has since extended the holding in Rhines, so that the
“stay-and-abeyance procedure is not limited to mixed petitions, and a district court may
stay a petition that raises only unexhausted claims.” Mena v. Long, 813 F.3d 907, 908 (9th
Cir. 2016). Staying a habeas case preserves the original filing date of the claims asserted
in the original petition, for purposes of the one-year federal statute of limitations period.
An important consideration for federal habeas petitioners is that statutory tolling of
the limitations period is not permitted if the state post-conviction action was not “properly
filed.” If a petitioner files an untimely state post-conviction action—or one that is
procedurally improper for another reason—then that action cannot toll the federal
limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Unfortunately, a
petitioner usually does not receive a state court order concluding that a post-conviction
action is procedurally improper until after the federal statute of limitations has expired,
causing loss of the claims the petitioner had hoped to exhaust in the state post-conviction
matter. Once a federal statute of limitations has expired, it cannot be reinstated or
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resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820,
822 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations
period that has ended before the state petition was filed”).
There is a second important statute-of-limitations consideration for federal habeas
petitioners: If a petitioner amends a petition after the federal statute of limitations has run,
the amendments might not receive the benefit of, or “relate back” to, the original petition’s
filing date. Amendments relate back to the original petition only if the original and
amended pleadings both arise out of the same “‘conduct, transaction, or occurrence.’”
Mayle v. Felix, 545 U.S. 644, 655 (2005) (alteration omitted) (quoting Fed. R. Civ. P.
15(c)(2), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562–
63 (2007). Because Rule 15 is applied in conjunction with the “more demanding” standard
in Habeas Rule 2(c), the words “same ‘conduct, transaction, or occurrence” do not mean
simply “the same ‘trial, conviction, or sentence.’” Id. at 655, 664. Rather, relation back is
proper only when “the original and amended petitions state claims that are tied to a
common core of operative facts.” 2 Id.
Courts use a two-step analysis to decide whether, for statute of limitations purposes,
a claim in an amended petition relates back to a claim in the original petition. A court first
The Supreme Court offered the following examples of cases where this standard was satisfied:
(1) Mandacina v. United States, 328 F.3d 995, 1000–1001 (8th Cir. 2003), in which the original petition
alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), “while the amended petition alleged the
Government’s failure to disclose a particular report,” and “[b]oth pleadings related to evidence obtained at
the same time by the same police department”; and (2) Woodward v. Williams, 263 F.3d 1135, 1142 (10th
Cir. 2001), in which “the original petition challenged the trial court’s admission of recanted statements,
while the amended petition challenged the court’s refusal to allow the defendant to show that the statements
had been recanted.” Mayle, 545 U.S. at 664 n.7.
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must “determine what claims the amended petition alleges and what core facts underlie
those claims.” Ross v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020). Then, “for each claim
in the amended petition,” the court must “look to the body of the original petition and its
exhibits to see whether” (a) “the original petition set out or attempted to set out a
corresponding factual episode,” or (b) “whether the claim is instead supported by facts that
differ in both time and type from those the original pleading set forth.” Id. (internal
quotation marks and alterations omitted).
In addition, an amendment invoking a legal theory not suggested in the original
petition relates back to that original petition only if it arises from the same “episode-insuit.” Mayle, 545 U.S. at 659–60 (citing Tiller v. Atl. Coast Line R. Co., 323 U.S. 574, 580–
81 (1945)). For example, ineffective assistance claims relate back to claims where the
underlying substantive error is based on the same set of facts. See Nguyen v. Curry, 736
F.3d 1287, 1296–97 (9th Cir. 2013) (determining that a claim that appellate counsel was
ineffective for failing to raise double jeopardy issue related back to a timely-raised
substantive double jeopardy claim), abrogated on other grounds by Davila v. Davis, 137
S. Ct. 2058 (2017); Abdulle v. Uttecht, 2020 WL 2065882 (W.D. Wash. Jan. 6, 2020)
(report and recomm’n), relevant portion adopted by, 2020 WL 2063772, at *2 (W.D. Wash.
Apr. 29, 2020) (district court order).
REQUEST FOR APPOINTMENT OF COUNSEL
Petitioner has also requested appointment of counsel. Am. Pet. at 7. There is no
constitutional right to counsel in a habeas corpus action. Coleman, 501 U.S. at 755. A
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habeas petitioner has a right to counsel, as provided by rule, if an evidentiary hearing is
required in the case. See Habeas Rule 8(c). In addition, the Court may exercise its discretion
to appoint counsel for an indigent petitioner in any case where required by the interests of
justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be
appointed turns on the petitioner’s ability to articulate the claims in light of the complexity
of the legal issues and the petitioner’s likelihood of success on the merits. See Weygandt v.
Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam).
At this point, the Court concludes that, based on the evidence currently in the record
(Dkt. 8), it will be unlikely that Petitioner will be able to meet the strict standards of 28
U.S.C. § 2254(d) for issuance of a writ of habeas corpus. Therefore, at this time the Court
will deny the request for appointment of counsel without prejudice. The Court will notify
the parties if it determines, at a later date, that appointment of counsel may be appropriate.
IT IS ORDERED:
Petitioner’s request for appointment of counsel (contained in the Amended
Petition) is DENIED without prejudice.
The Clerk of Court will serve (via ECF) a copy of the Amended Petition
(Dkt. 8), along with any attachments, together with a copy of this Order, on
L. LaMont Anderson, on behalf of Respondent, at Mr. Anderson’s registered
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Within 120 days after service of the Petition, Respondent may file either of
the following: (1) a motion for summary dismissal or partial summary
dismissal on procedural grounds (which may be followed by an answer if the
motion is unsuccessful); or (2) an answer and brief, on the claims that were
adjudicated on the merits by the Idaho Supreme Court, that also includes a
brief summary (between one paragraph and several pages) of any procedural
defenses for any claims (which may be argued in the alternative). If
Respondent files an answer and brief, the Court first may consider the claims
that were adjudicated on the merits by the Idaho Supreme Court; for any
claims that appear to warrant relief or any claims not disposed of on the
merits that appear subject to procedural defenses, the Court may then
determine whether those claims are barred by any procedural defenses and
will call for additional briefing, evidence, or a hearing, if necessary.
Respondent must file with the responsive pleading or motion, or within a
reasonable time thereafter, a copy of all portions of the state court record
previously transcribed that are relevant to a determination of the issues
presented. Any presentence investigation reports or evaluations—which
must be provided to the Court if the petition contains any sentencing
claims—must be filed under seal. The lodging of the remainder of the state
court record, to the extent that it is lodged in paper format, is exempt from
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the redaction requirements, as provided in District of Idaho Local Civil Rule
If the response to the habeas petition is an answer, Petitioner must file a reply
(formerly called a traverse), containing a brief rebutting Respondent’s
answer and brief, which must be filed and served within 28 days after service
of the answer and brief. Respondent has the option of filing a sur-reply within
14 days after service of the reply. At that point, the case will be deemed ready
for a final decision.
If the response to the habeas petition is a motion, Petitioner’s response must
be filed and served within 28 days after service of the motion, and
Respondent’s reply, if any, must be filed and served within 14 days
In the response to the habeas petition, whether a motion or an answer and
brief, Respondent must include citations to all portions of the state court
record that support Respondent’s assertions. Although Respondent may
include citations to a state appellate court decision that describes events that
took place in a lower court, Respondent must also include citations to the
underlying lower court record.
Alternatively, if any of Petitioner’s claims are currently under consideration
in state court proceedings, Respondent (or Petitioner, for that matter) may
file a motion to stay this case pending the outcome of those proceedings. See
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Rhines v. Weber, 544 U.S. 269, 277–78 (2005); Mena v. Long, 813 F.3d 907,
908 (9th Cir. 2016).
No party may file supplemental responses, replies, affidavits, or other
documents not expressly authorized by the Local Rules or by this Order
without first obtaining leave of Court.
No discovery may be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Habeas Rules.
The parties may, but need not, file the following in this matter: (1) notices of
non-objections to motions to which they do not object; (2) responses to
motions for appointment of counsel; (3) responses to motions that are
meritless, frivolous, or filed in contravention of this Order; or (4) notices of
intent not to file a reply. If additional briefing is required on any issue, the
Court will order it.
Each party must ensure that all documents filed with the Court are
simultaneously served via the ECF system or by first-class mail upon the
opposing party (through counsel if the party has counsel), pursuant to Federal
Rule of Civil Procedure 5. Each party must sign and attach a proper mailing
certificate to each document filed with the court, showing the manner of
service, date of service, address of service, and name of the person upon
whom service was made, or as specified by the applicable ECF rules. The
Court will not consider ex parte requests unless a motion may be heard ex
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parte according to the rules and the motion is clearly identified as requesting
an ex parte order, pursuant to Local Rule 7.2. (“Ex parte” means that a party
has provided a document to the court, but that the party did not provide a
copy of the document to the other party to the litigation.)
All Court filings requesting relief or requesting that the Court make a ruling
or take an action of any kind must be in the form of a pleading or motion,
with an appropriate caption designating the name of the pleading or motion,
served on all parties to the litigation, pursuant to Federal Rules of Civil
Procedure 7, 10 and 11, and Local Rules 5.2 and 7.1. The Court will not
consider requests made in the form of letters.
Petitioner must at all times keep the Court and Respondent advised of any
change in address.
If Petitioner’s custodian changes at any point during this litigation, Petitioner
must file a Notice of Substitution of Respondent within 28 days of such
change, identifying the person who is substituted as Respondent. See Fed. R.
Civ. P. 25(d); Habeas Rule 2(a).
DATED: September 8, 2021
David C. Nye
Chief U.S. District Court Judge
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