Neubauer v. Sachse
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioners request for leave to file amicus briefs from his associates is DENIED. [Doc. 11 .] IT IS FURTHER ORDERED that Petitioners motion to expand the record is DENIED. [Doc. 11 .] IT IS FINA LLY ORDERED that Petitioners request for additional time to conduct caselaw research is GRANTED. [Doc. 11 .] Petitioner shall have ninety (90) days from the date of this order to supplement his reply with caselaw in support of his petition for a writ of habeas corpus. Signed by Magistrate Judge Nannette A. Baker on 10/25/16. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHARLES T. NEUBAUER,
No. 4:16-CV-767 NAB
MEMORANDUM AND ORDER
The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 7.] This matter is before the undersigned on
Petitioner’s pro se request for leave to file “amicus briefs from [his] associates” and “affidavits
from witnesses” and for additional time to conduct caselaw research. [Doc. 11.] Respondent has
not filed a response and the time to do so has passed.
Finding no basis upon which to allow the filing of amicus briefs from Petitioner’s
associates, the Court will deny the request. The Court will construe Petitioner’s request to file
witness affidavits as a motion to expand the record. “If a petition is not dismissed, the judge may
direct the parties to expand the record by submitting additional materials relating to the petition.”
Rule 7(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The
judge may require that the materials be authenticated. Rule 7(b). “When a petitioner seeks to
introduce evidence pursuant to this rule, the conditions prescribed by 28 U.S.C. § 2254(e)(2)
must still be met.” Mark v. Ault, 498 F.3d 775, 788 (8th Cir. 2007). Section 2254(e)(2) provides
If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not [allow
the applicant to expand the record] on the claim unless the
applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable; or a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
“Federal courts may … supplement the state record only in
extraordinary circumstances because of the obligation to defer to state courts’ factual
determinations.” Hall v. Luebbers, 296 F.3d 685, 700 (8th Cir. 2002).
Petitioner requests leave to file affidavits from witnesses but does not identify the
witnesses, describe the nature of their testimony, or provide the affidavits. The undersigned
finds that Petitioner has not met his burden for expansion of the record under Rule 7 of the Rules
Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2254(e)(2).
Therefore, the undersigned will deny Petitioner’s motion to expand the record.
Finally, Petitioner requests additional time to conduct caselaw research. The undersigned
will grant Petitioner ninety days.
IT IS HEREBY ORDERED that Petitioner’s request for leave to file amicus briefs from
his associates is DENIED. [Doc. 11.]
IT IS FURTHER ORDERED that Petitioner’s motion to expand the record is
DENIED. [Doc. 11.]
IT IS FINALLY ORDERED that Petitioner’s request for additional time to conduct
caselaw research is GRANTED. [Doc. 11.] Petitioner shall have ninety (90) days from the date
of this order to supplement his reply with caselaw in support of his petition for a writ of habeas
Dated this 25th day of October, 2016.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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