Contino v. Hillsborough County Department of Corrections, Superintendent

Filing 40

ORDER: Respondent directed to produce records within 30 days. Signed by Chief Judge Steven J. McAuliffe. (jab)

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Rico A. Contino, Petitioner v. James O'Mara, Superintendent, Hillsborough County House of Corrections, Respondent ORDER Civil No. 09-cv-062-SM Opinion No. 2009 DNH 151

Rico Contino has petitioned for a writ of habeas corpus. Both parties have filed summary judgment motions.1 Neither

party, however, has provided (1) the September 5, 2008, Superior Court order, which was apparently relied upon by the New Hampshire Supreme Court in its order dated January 9, 2009,2 (2) the Acknowledgement and Waiver of Rights form that Nashua District Court Judge Michalik described in his February 10, 2009,

The court notes the unusual circumstance of private counsel, rather than government attorneys, representing the respondent. Although generally regarded as a "civil" proceeding, the habeas petition challenges the validity of petitioner's underlying criminal conviction. An October 9, 2008, Supreme Court order describes the September 5 Superior Court order as "denying a petition for writ of habeas corpus" but says nothing about the grounds for that denial. For his part, petitioner characterizes the September 5 order as denying his petition and stating that he needed to "seek a withdrawal of his plea in the District Court." (Attach. to Pet., at 29.) But, again, neither party has produced a copy of the September 5 Superior Court order.
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order as being attached thereto, or (3) the record of the January 9, 2008, plea hearing to which Judge Michalik referred in his February 10 order. The court cannot properly resolve the motions

before it without consideration of those essential aspects of the state court record. Counsel for the respondent is directed to

produce those records within thirty days, with copies provided to petitioner.

SO ORDERED.

____________________________ Steven J. McAuliffe Chief Judge October 14, 2009 cc: Rico A. Contino, pro se Elizabeth L. Hurley, Esq.

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