Thurlow v. NH State Prison, Warden

Filing 14

ORDER denying without prejudice 13 petitioner's cross-motion for summary judgment; and denying without prejudice 10 respondent's motion for summary judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin Thurlow
v.

Case No. 16-cv-512-SM
Opinion No. 2018 DNH 007

Michael Zenk, Warden,
New Hampshire State Prison

O R D E R
Before the court in this habeas corpus action is respondent
Michael Zenk’s motion for summary judgment (Doc. No. 10) and
petitioner Kevin Thurlow’s cross-motion for summary judgment
(Doc. No. 13).

For the reasons that follow, both motions are

denied without prejudice.

Discussion
I.

Records Filed in this Case
The respondent, in connection with his answer (Doc. No. 4)

to Thurlow’s habeas petition (Doc. No. 1), but under separate
cover, filed records from the petitioner’s state court criminal
case, direct appeal, and post-conviction proceedings.
Nos. 5, 8.

See Doc.

Respondent submitted those records to the court

conventionally, rather than electronically, with a cover letter
from respondent’s counsel indicating that petitioner was served
with only the cover letter, and not a hard copy of the record
documents filed.

See id.

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”).

Further, “[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).

In Rodriguez v. Fla. Dep’t of Corr., the Eleventh Circuit
held that in the context of a state’s answer to a § 2254
petition, that “[b]ecause the Civil Rules require service of all
pleadings, it follows that the exhibits to the pleading must
also be served, regardless of whether they were filed at the
same time.”

748 F.3d 1073, 1076-77 (11th Cir. 2014).

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); Thompson v. Greene, 427 F.3d 263,
268 (4th Cir. 2005)).

Section 2254 Rules 5(c) and 5(d), which

require that the respondent attach to the answer, transcripts

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and other state court documents, supports the conclusion that
such documents be served on the petitioner.
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.”

AP 3.9.

All of the

respondent’s pleadings, including the conventionally filed
attachments thereto, whether filed with the pleading or
separately, must be served on the petitioner under Fed. R. Civ.
P. 5(a)(1)(B), 10(c), and AP 3.9.
It appears from the record in this case that the respondent
has not served the petitioner with a copy of the state court
records that have been filed with this court in connection with
his answer.

Accordingly, the respondent must serve Thurlow

conventionally with copies of any documents that have been filed
in this case in conjunction with letters docketed as Doc. Nos. 5
and 8.

Going forward, all documents respondent files in this

matter, either conventionally or electronically, must be served
on Thurlow.1

1A

number of documents relating to post-conviction
proceedings in the Superior Court, and the direct appeal of
those proceedings, were filed in an appendix to Thurlow’s
petition in this case. See Doc. No. 1-1. The respondent need
not refile documents already in the record in this case.

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II.

Records Missing from Summary Judgment Record
In his motion for summary judgment, the respondent asks the

court to deny Thurlow’s request for habeas relief on the basis
that the Superior Court issued a decision that was not “based on
an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.”
1, at 10 (quoting § 28 U.S.C. § 2254(d)(2)).

Doc. No. 10-

To make a

determination as to whether the Superior Court reasonably
determined the facts before it in Thurlow’s post-conviction
proceedings, this court must review the Superior Court’s
decision in light of all of the evidence before the Superior
Court in those proceedings.

See Garuti v. Roden, 733 F.3d 18,

22 (1st Cir. 2013) (citing Cullen v. Pinholster, 563 U.S. 170,
181 (2011); 28 U.S.C. § 2254(d)).
Before the Superior Court at the April 26, 2016 hearing, as
an exhibit under seal and subject to a protective order, were
the counseling notes of the complainant in Thurlow’s criminal
case.

See Apr. 26, 2016 Hr’g Tr., 2:19, 7:21-22, State v.

Thurlow, No. 218-2010-CR-01686 (N.H. Super. Ct., Rockingham
Cty.).

The counseling notes were specifically referenced and

relied upon in the Superior Court’s Order denying Thurlow’s
motion for new trial.

State v. Thurlow, No. 218-2010-CR-01686

(N.H. Super. Ct., Rockingham Cty.), July 6, 2016 Order, at 1417, 19, 20.

Also referenced in the July 6, 2016 Order is the

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affidavit of Attorney Jonathan Saxe, which was filed as an
attachment to a discovery motion Thurlow filed in the Superior
Court during the post-conviction proceedings.
n.2, 7, 11-13.

See id. at 3 &

Neither the counseling notes nor Attorney Saxe’s

affidavit have been provided to the court.
This court cannot make requisite findings in this matter
without reviewing the entire record before the Superior Court in
the post-conviction proceedings.

Accordingly, both pending

motions for summary judgment are denied, without prejudice to
being refiled after the respondent files a more complete record,
as directed below.
The respondent is directed to provide this court with
copies of the counseling notes and the Saxe affidavit that were
before the Superior Court in the post-conviction proceedings,
and to serve the Saxe affidavit on petitioner by February 2,
2018.

The respondent may file the counseling notes under

provisional seal at Level II, without serving petitioner with a
copy of the notes in the first instance, provided the respondent
complies with the specific terms of this Order set forth below.

Conclusion
For the reasons discussed above, the respondent’s motion
for summary judgment (Doc. No. 10) and petitioner’s motion for
summary judgment (Doc. No. 13) are DENIED, without prejudice to

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either party’s ability to refile his motion after the respondent
files, and serves on petitioner, a more complete record, as
described in this Order.
The court issues the following order with respect to the
filing and service of the record in this case:
1.
The respondent is directed to serve petitioner with a
complete copy of the record documents submitted
conventionally to the court in conjunction with cover
letters docketed in this matter as Document Nos. 5 and 8,
on or before February 9, 2018.
2.
The respondent is directed to file with the court, and
serve on petitioner, a copy of the affidavit of Attorney
Jonathan Saxe referenced in the July 6, 2016 Superior Court
order, on or before February 9, 2018.
3.
The respondent is directed to file with the court a
complete copy of the complainant’s counseling records
submitted to the Superior Court in the state court postconviction proceedings pertinent to this matter, on or
before February 9, 2018, as follows:
a.
The counselling records may be filed under
provisional seal, along with a motion to seal. If the
counseling records are filed under provisional seal,
the filing must also include:
i.
A motion to seal the records at Level I
and/or Level II, which meets the requirements of
LR 83.12(c), which motion shall be served on
petitioner;
ii. A motion for a protective order, which shall
be served on petitioner, accompanied by a
proposed protective order, which will allow the
petitioner reasonable access to the sealed
records to which he had access in the Superior
Court, while protecting the confidentiality of
the records to the extent possible; and
iii. A copy of any protective order or similar
order issued by the Superior Court concerning the

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protection of the confidentiality of the
counselling records. This document must be
served on the petitioner.
b.
Along with the records, the respondent must file
a document indicating to the court which records were
disclosed to the petitioner after the Superior Court’s
in camera review, either before or after the
evidentiary hearing on the motion for new trial. The
respondent must serve this document on the petitioner.
4.
The parties may refile motions for summary judgment in
this case on or before April 13, 2018.
5.
Any party may move to extend any deadline in this case
for good cause shown.
SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
January 8, 2018
cc:

Kevin Thurlow, pro se
Elizabeth C. Woodcock, Esq.

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