Monceaux v. Vannoy

Filing 28

ORDER granting 26 Motion for Extension of Time to File Response ; granting 27 Motion for Definite Statement to Respondent's Answer. Signed by Magistrate Judge Kathleen Kay on 9/27/2016. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

WILCY ERNEST MONCEAUX, SR.
D.O.C. # 593048

:

DOCKET NO. 15-cv-2139

VERSUS

:

JUDGE TRIMBLE

DARREL VANNOY

:

MAGISTRATE JUDGE KAY

ORDER

Before the court are the petitioner’s motions for an extension of time to file his reply and
for a more definite statement. Docs. 26, 27. The basis for both of these motions is the petitioner’s
contention that he does not have in his possession the record relied upon by the state.
The petitioner alleges that he is entitled to copies of all exhibits filed by the respondent,
pursuant to Rule 5 of the Rules Governing Section 2254 Cases. Doc. 27, att. 1, pp. 3–4 (citing
Thompson v. Greene, 427 F.3d 263 (4th Cir. 2005) and Pindale v. Nunn, 248 F.Supp.2d 361
(D.N.J. 2003)). As the courts noted in both Thompson and Pindale, Rule 5 does not explicitly
require service of the record in a § 2254 case. Thompson, 427 F.3d at 268–69; Pindale, 248
F.Supp.2d at 364; see also Norris v. Crosby, 2007 WL 128822, *1–*3 (M.D. Fla. Jan. 12, 2007)
(declining to require service of record upon petitioner). However, the Fifth Circuit has ruled that
when the respondent attaches exhibits to the answer, “there can be little dispute that those exhibits
must be served together with the answer itself on the habeas petitioner.” Sixta v. Thaler, 615 F.3d
569, 572 (5th Cir. 2010).

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Here our service order only required that the respondent file with this court a certified copy
of the state court record and related documents within the same filing deadline for providing his
answer. Doc. 10, pp. 3–4. Instead, the respondent filed the record as exhibits attached to his answer.
See Doc. 23 and attachments. Accordingly, the record is now an exhibit to the instant case and the
respondent must serve it upon the petitioner.
Accordingly, the Motion for a More Definite Statement [doc. 27] is GRANTED, to the
extent that the respondent must also file and serve upon the petitioner all exhibits attached to the
answer in addition to an index of same within 30 days. The Motion for an Extension of Time [doc.
26] is also GRANTED and the petitioner is given an additional 90 days from receipt of the
respondent’s statement to file his reply.
THUS DONE this 27th day of September, 2016.

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