Leslie v. Neven et al

Filing 58

ORDER Denying Respondents' 52 Motion to Partially Strike Petitioner's 51 Reply to Answer. Signed by Judge Andrew P. Gordon on 9/22/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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EMERSON LESLIE,

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Petitioner,

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vs.

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Case No. 2:13-cv-01989-APG-VCF

D. W. NEVEN, et al.,

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ORDER

Respondents.

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Before the court are respondents’ motion to partially strike petitioner’s reply to answer (ECF

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No. 52) and petitioner’s opposition (ECF No. 53). Respondents ask the court to strike two exhibits

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attached to petitioner’s reply to the answer (ECF No. 51) because they were not part of the state-

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court record. Respondents note correctly that this court’s review under 28 U.S.C. § 2254(d) is

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limited to the record before the state courts at the time they adjudicated petitioner’s claims on the

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merits. See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). However, if § 2254(d) does not

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apply, then this court’s review is de novo. The court cannot state at this time whether § 2254(d)

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applies, and the court will not strike exhibits now that it might need later. Furthermore, even if

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§ 2254(d) does apply, the court would not need to strike exhibits; the court simply would not use

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those exhibits in its determinations.

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IT IS THEREFORE ORDERED that respondents’ motion to partially strike petitioner’s
reply to answer (ECF No. 52) is DENIED.
DATED: September 22, 2016.

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_________________________________
ANDREW P. GORDON
United States District Judge

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