Gray v. NH Department of Corrections, Commissioner

Filing 47

ORDER granting 43 Motion for Order that Respondent Comply with LR 3.9 Service Upon Petitioner. So Ordered by Magistrate Judge Andrea K. Johnstone.(jbw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey M. Gray
v.

Case No. 1:15-cv-508-LM
Opinion No. 2017 DNH 108

Michael A. Zenk, Warden,
New Hampshire State Prison

O R D E R
Before the court in this habeas action, is petitioner
Jeffrey Gray’s motion (Doc. No. 43), requesting that the court
order the respondent to serve Gray with conventionally filed
trial transcripts and state court documents which the respondent
submitted to the court with the respondent’s answer to Gray’s
petition.1

Respondent has not objected or otherwise responded to

the motion.

Background
On January 19, 2017, this court issued an Order (Doc. No.
27) directing the respondent to answer Gray’s petition for a
writ of habeas corpus.

On February 21, 2017, respondent filed

an answer (Doc. No. 31).

The following day, the respondent

conventionally filed copies of transcripts and state court

1Gray

has filed a “Petitioner’s Renewed Motion [to] Order
the Respondent to Produce All Transcripts” (Doc. No. 29) that is
pending before the court. That motion is not addressed in this
Order.

documents in the court with a cover letter (Doc. No. 33) dated
February 22, 2017.

The letter included the notation “Cc:

Jeffrey M. Gray (letter only),” indicating that the February 22
cover letter, but not the conventionally filed documents
attached thereto, was served on Gray.
On March 10, 2017, Gray filed in the court a copy of a
March 7, 2017 letter he had sent to respondent’s counsel (Doc.
No. 38), requesting that she serve him with a copy of all of the
documents filed in the court on February 22, 2017.

On March 15,

2017, respondent’s counsel filed “Respondent’s Answer to
Petitioner’s Document 38,” (Doc. No. 41), stating that “if the
petitioner wishes copies of what the respondent filed with this
Court, he need only write to the undersigned lawyer and ask for
copies.”

Doc. No. 41, at 1.

Although Gray had written to

Respondent’s counsel and asked for copies of the conventionally
filed documents on March 7, 2017, see Doc. No. 38, Respondent’s
counsel apparently did not send Gray copies of any of the
conventionally filed documents.

Instead, Respondent’s counsel

filed a document in the court, listing the documents she had
filed conventionally on February 22, 2017, and stating that she
was not required to serve Gray with copies of those documents.
Gray filed the instant motion (Doc. No. 43) on March 24,
2017, seeking copies of the documents respondent conventionally
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filed on February 22, 2017.

In his motion, Gray argues that the

Federal Rules of Civil Procedure, and this court’s local rules,
require that he be served with any documents the respondent
files conventionally in this case.
Respondent has not objected or otherwise responded to
Gray’s motion.

On April 25, 2017, however, respondent

conventionally filed an additional state court document in this
matter, along with a cover letter (Doc. No. 46) which, again,
indicates, by the notation “Cc: Jeffrey M. Gray (letter only),”
that Gray has been provided only with a copy of the letter, and
not the attached document.

Discussion
Rule 5(a)(1)(B) 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(a)(1)(B); 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”).

“A 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. 10(c).
3

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).

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This includes documents

that are “filed separate from the answer, but [are] referred to
in it.”

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.
2005)).
Here, transcripts and state court documents were referenced
in the respondent’s February 21, 2017, answer (Doc. No. 31), but
were actually filed in court on the following day, February 22,
2017, under separate cover (Doc. No. 33).

The respondent “must

attach” those transcripts and state court documents to the
answer.

§ 2254 Rules 5(c)-(d) (emphasis added).

Accordingly,

the court considers the separately-filed transcripts and state
court documents to be an attachment to the answer, and further
considers those attached transcripts and state court documents
to be “a part of the pleading for all purposes.”
P. 10(c).

Fed. R. Civ.

As Fed. R. Civ. P. 5(a)(1)(B) requires that all
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pleadings be served on every other party in a case, the
respondent was required to serve the petitioner with a copy of
the transcripts and state court documents that were
conventionally filed in this case on February 22, 2017.
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.”
3.9.

AP

All of the respondent’s pleadings, including the

conventionally filed attachments thereto, therefore, must be
served on the petitioner under Fed. R. Civ. P. 5(a)(1)(B) and
10(c), and AP 3.9.2
Section 2254 Rules 5(c) and 5(d), which require that the
respondent attach, to the answer, transcripts and other state
court documents, neither state nor imply that such attached
documents need not be served on the petitioner.

2Gray

See Crespin v.

asserts that the transcripts of his state court case
are available in PDF format, although the court does not know
whether the transcripts submitted by the respondent were
available to the respondent in PDF format at the time they were
filed in this court. Transcripts available in PDF format 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).
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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.’”).

Accordingly, the

respondent must serve Gray with copies of any documents that
are, or have already been, conventionally or electronically
filed in this case, in connection with the answer or any other
pleading, whether attached directly to that pleading or to a
letter filed under separate cover.

Conclusion
For the foregoing reasons, the petitioner’s motion for
compliance (Doc. No. 43) is GRANTED.

The respondent is ordered

to serve all of the transcripts that have been conventionally
filed in this court on the petitioner, including those documents
attached to Document Nos. 33 and 46, on or before July 6, 2017,
6

and to simultaneously file with the Court a certificate
evidencing such service.
SO ORDERED.

______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 7, 2017
cc:

Jeffrey M. Gray, pro se
Elizabeth C. Woodcock, Esq.

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