Towle v. NH State Prison, Warden
ORDER granting 75 Petitioner's Motion for Compliance. So Ordered by Magistrate Judge Andrea K. Johnstone.(lat)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert V. Towle
Case No. 1:15-cv-117-SM
Opinion No. 2017 DNH 107
Warden, New Hampshire State Prison
O R D E R
Before the court in this habeas action, is petitioner
Robert Towle’s motion for compliance (Doc. No. 75), requesting
that the court order the respondent to produce trial transcripts
referenced in defendant’s motion for summary judgment (Doc. No.
Respondent objects (Doc. No. 76).
The petitioner filed a petition for a writ of habeas corpus
(Doc. No. 1) on April 7, 2015.
On April 22, 2016, the
respondent filed an answer to the habeas petition, which stated
that the transcripts identified as relevant by the petitioner
“will be filed conventionally with this Court.”
Doc. No. 15, at
The respondent filed a motion to dismiss (Doc. No. 18) on
June 28, 2016.
On July 1, 2016, the respondent filed
transcripts to be considered by the court in conjunction with
the motion to dismiss, that were accompanied by a cover letter.
The cover letter, which consisted of a list of transcripts
submitted, was identified in the docket as an “addendum” (Doc.
No. 19) to the motion to dismiss.
Counsel for the respondent
did not send copies of the addendum or transcripts to the
On April 3, 2017, the respondent filed a motion for summary
judgment (Doc. No. 72), which specifically references the
transcripts submitted as an addendum to the motion to dismiss.
The petitioner has filed the instant motion for compliance (Doc.
No. 75) in an effort to secure the transcripts addended to the
respondent’s motion to dismiss, and upon which the respondent
relies in his summary judgment motion.
Towle asks the court to direct that the respondent serve
him with copies of the transcripts filed conventionally in this
matter, citing Rule 5 of the Rules Governing Section 2254 Cases
in the United States District Courts (“§ 2254 Rules”).
Respondent objects, stating that neither § 2254 Rule 5, nor
“this Court’s practice in Section 2254 cases” require him to
serve the petitioner with conventionally filed transcripts.
court notes that the addendum indicates that it was
copied to petitioner, and that it included an enclosure, but
does not make clear that the documents enclosed with/attached to
the addendum were not copied to Towle.
Doc. No. 76, at 1.
Rule 5 of the Federal Rules of Civil Procedure requires
that all pleadings filed by a party be provided to every other
party to the action.
See Fed. R. Civ. P. 5; see also Rule 12,
Rules Governing Section 2254 Cases in the United States District
Court (“§ 2254 Rules”) (Federal Rules of Civil Procedure apply
to habeas proceedings “to the extent that they are not
inconsistent with any statutory provisions or these rules”).
copy of a written instrument that is an exhibit to a pleading is
a part of the pleading for all purposes.”
Fed. R. Civ. P.
In Rodriguez v. Fla. Dep’t of Corrs., the Eleventh Circuit
held that in the context of a state’s answer to a § 2254
petition, “exhibits to the pleading must also be served,
regardless of whether they were filed at the same time.”
F.3d 1073, 1076-77 (11th Cir. 2014).
This includes documents
that are “filed separate from the answer, but [are] referred to
Id. at 1076.
The Fourth and Fifth Circuits have also
held that “all documents referenced in the State’s answer and
filed with the Court must be served on the habeas petitioner.”
Id. at 1077 (citing Sixta v. Thaler, 615 F.3d 569, 572 (5th Cir.
2010) and Thompson v. Greene, 427 F.3d 263, 268 (4th Cir.
Here, the transcripts were first mentioned in the
respondent’s April 22, 2016, answer, see Doc. No. 15, at 2; but
were actually entered into the record on July 1, 2016, as an
addendum to the respondent’s June 28, 2016, motion to dismiss
(Doc. No. 18).
See July 1, 2016, Addendum (Doc. No. 19).
the transcripts were referenced in the answer, the transcripts
are treated as a part of the pleading itself.
See Fed. R. Civ.
As Rule 5(a) requires that all pleadings must be
provided to every party, the respondent has the responsibility
to serve the petitioner with a copy of the transcripts.
Moreover, the local rules of this court require that
“[d]ocuments that are filed conventionally shall be
conventionally served in accordance with the Federal Rules of
Civil/Criminal Procedure and the local rules of this court.”
All of the respondent’s pleadings, including the
attachments thereto, therefore, must be served on the petitioner
under Rules 5(a) and 10(c) and AP 3.9.2
court assumes that the transcripts respondent has filed
are not available in PDF format, as transcripts so available
must be filed electronically. See AP 4.3. The ability of the
respondent to file transcripts electronically, however, would
not relieve him of his obligation to conventionally serve the
petitioner in this case with a copy of the transcripts. See AP
2.1(d) (requiring electronically filed documents to be served
conventionally on all pro se litigants who are not authorized to
proceed electronically in the case in which the documents are
Respondent’s counsel claims that her failure to provide the
petitioner with copies of conventionally filed documents in this
case is consistent with § 2254 Rule 5.
Section 2254 Rules 5(c)
and 5(d) require that the respondent file, with the answer,
transcripts and other documents.
Those rules neither state nor
imply that such attached documents need not be served on the
See Crespin v. Stephens, No. 3:15-cv-818-D-BN, 2015
U.S. Dist. LEXIS 137855, at *7, 2015 WL 5924405, at *3 (N.D.
Tex. Oct. 8, 2015) (“Respondent’s inclusion of those portions of
the state court records cited in his answer in a separate filing
with the rest of the state court records – a filing not served
on Petitioner – coupled with his decision not to physically
attach those applicable portions as exhibits to the answer . . .
[and] not serving Petitioner with those portions of the state
court records relied on in – yet not physically attached as
exhibits to – the answer does seem to strain . . . the Habeas
Rules and Civil Rules ‘considered together.’”).
Further, to the extent the respondent’s counsel relies on a
bald assertion that “this Court’s practice,” Doc. No. 76, at 1,
is not to require transcripts to be conventionally served on pro
se prisoners, her reliance is misguided.
It is the practice of
this court to ensure that the parties follow all of the
applicable substantive and procedural laws and rules in this and
all cases before it.
If respondent’s counsel is stating that it
has been her practice to disregard those rules in this court, it
has not been with the court’s knowledge, much less condonation.
For the foregoing reasons, the petitioner’s motion for
compliance (doc. no. 75) is GRANTED.
The respondent is ordered
to serve all of the transcripts that have been conventionally
filed in this court on the petitioner on or before July 5, 2017,
and to simultaneously file with the Court a certificate
evidencing such service.
Petitioner’s deadline to respond to
the motion for summary judgment (Doc. No. 72) is extended until
September 5, 2017.
Andrea K. Johnstone
United States Magistrate Judge
June 6, 2017
Robert V. Towle, pro se
Elizabeth C. Woodcock, Esq.
Lynmarie C. Cusack, Esq.
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