PANDURE v. RICCI et al

Filing 17

MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 3/15/2012. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMIE PANDURE,
Petitioner,
v.
MICHELLE RICCI, et al.,
Respondents.

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Civil No. 10-4426 (FLW)

MEMORANDUM OPINION

WOLFSON, District Judge:
1. Petitioner filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
challenging a judgment of conviction entered in the Superior Court of New Jersey, Monmouth
County on August 21, 1998.
2. On September 12, 2011, Respondents filed an Answer and exhibits from the state
court record. (Dkt. Nos. 9-13.)
3. On November 4, 2011, Petitioner filed a “MOTION FOR PRODUCTION OF
EXHIBITS NEEDED TO PREPARE A REPLY AND TRAVERSE.” (Dkt. 14.) In his
supporting declaration, Petitioner states that, although he received the Answer, Amended
Answer, and index of exhibits filed by respondents, he was not served copies of the 106 exhibits
filed by respondents with the Answer. (Dkt. 14-2.) Petitioner avers that he has never seen 11
exhibits filed by respondents and, although he believes that numerous exhibits may have “been in
[his] possession at one time, [they] were apparently part of a shipment of documents sent home at
the direction of prison officials (who claimed that [he] had too many boxes of property in [his]

cell), and were either accidently lost or destroyed by [his] family over the years.” Id. at 3.
Petitioner further avers that, he cannot view the exhibits online because he is unable to access
PACER while incarcerated, and he has been unable to obtain these exhibits on his own. He
further states: “As a result of not having copies of the exhibits . . . I am unable to reference,
access, or determine the contents of critical documents cited and relied upon by Respondents in
their Amended Answer, and to which I materially disagree. Further, without knowledge of the
contents of the documents cited by Respondents, I am unable to prepare a Reply.” Id. at 6.
4. Respondents filed a letter opposing Petitioner’s motion, arguing that this Court should
deny the motion because Petitioner has not shown good cause for discovery under Habeas Rule 6
and that 28 U.S.C. § 2250 requires the Clerk of the Court to furnish a petitioner copies of
documents as may be required by order. (Dkt. 15.) Finally, Respondents request that, if this
Court finds good cause and orders them to provide copies of exhibits to Petitioner, this Court
permit Respondents to furnish a CD rather than hard copies. Id.
5. Petitioner filed a letter in response to Respondents’ opposition. He clarifies that he is
not requesting any discovery, but “asking the Court to direct Respondents to serve Petitioner with
copies of exhibits that Respondents filed with their Answer.” (Dkt. 16 at 1.) Petitioner asserts
that Rule 5(a)(1)(B) of the Federal Rules of Civil Procedure obligates Respondents to serve
exhibits upon the opposing party. Petitioner states that he “is unable to prepare a Reply or
Traverse without knowing the contents of the exhibits that Respondents attached to their
Answer.” (Dkt. 16 at 2.) He asks this Court to either order Respondents to serve copies of the
exhibits or to strike the Answer.

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6. Habeas Rule 5 expressly requires a § 2254 respondent to file an answer, when so
ordered, and to attach to the answer relevant transcripts and other documents from the underlying
state court record. See 28 U.S.C. § 2254 Rule 5. The Advisory Committee’s Note to Habeas
Rule 5 states that, although Habeas Rule 5 does not indicate who the answer is to be served on,
“it necessarily implies that it will be mailed to the petitioner (or to his attorney if he has one).”
Advisory Committee’s 1976 Notes on Habeas Rule 5. This Court finds that Habeas Rule 5
required Respondents to serve the exhibits filed with the Answer on Petitioner.
7. In addition, Habeas Rule 11 provides that the Federal Rules of Civil Procedure, “to the
extent that they are not inconsistent with these rules, may be applied, when appropriate to
petitions filed under these rules.” 28 U.S.C. § 2254 Rule 11. Rule 10(c) of the Federal Rules of
Civil Procedure provides that “[a] copy of a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes,” and Rule 5(a) requires service of every pleading
subsequent to the original complaint, as well as all papers filed with the court, upon all parties
not in default. This Court further finds that the Federal Rules of Civil Procedure required
Respondents to serve the exhibits upon Petitioner.
8. Although this Court has not located any Supreme Court or Third Circuit precedent on
the issue, at least two circuits have held that the Habeas Rules and the Rules of Civil Procedure
require respondents to serve the answer and exhibits filed with the answer upon petitioners in a §
2254 case. See Sixta v. Thaler, 615 F.3d 569, 569 (5th Cir. 2010) (“We conclude that the
applicable procedural rules require the respondent in a § 2254 proceeding to serve both the
answer and any exhibits attached thereto on the habeas petitioner, and we therefore do not reach
the constitutional question presented”); Thompson v. Greene, 427 F.3d 263, 269 (4th Cir. 2005)
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(“Thus, the applicable rules mandate that an answer in a habeas corpus proceeding [under §
2254], along with all of its exhibits, must be served on a petitioner”).1
9. Moreover, Chief Judge Simandle held in Pindale v. Nunn, 248 F. Supp. 2d 361
(D.N.J. 2003), “that service of the documents filed with and attached to an answer is required by
Habeas Rule 5; moreover, even if service were not explicitly required by Habeas Rule 5, Rules
12(a) and 5(a) of the Federal Rules of Civil Procedure apply to § 2254 cases through Habeas
Rule 11[], and compel this result”). Id. at 367.
10. Respondents nevertheless argue that 28 U.S.C. § 2250 requires the Clerk of the Court
to furnish the exhibits filed with the Answer to Petitioner. Section 2254 provides:
If on any application for a writ of habeas corpus an order has been made
permitting the petitioner to prosecute the application in forma pauperis, the clerk
of any court of the United States shall furnish to the petitioner without cost
certified copies of such documents or parts of the record on file in his office as
may be required by order of the judge before whom the application is pending.
28 U.S.C. § 2250.
11. Because Petitioner Pandure paid the filing fee and this Court has not entered an order
permitting Pandure to proceed in forma pauperis, § 2250 does not apply to this case. See
Pindale, 248 F. Supp. 2d at 366. In any event, this Court agrees with Judge Simandle that, to the
extent that § 2250 conflicts with court rules requiring service of papers filed with the Court upon
parties, the statute is of no force. See id.; 28 U.S.C. § 2072 (“All laws in conflict with such rules

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The Fourth Circuit further opined: “The constitutionality of the Habeas Rules would be
placed in serious question if they were read to exempt habeas corpus proceedings from the general
service requirements . . . . Similarly, to read the Habeas Rules as permitting a respondent to file
exhibits that he fails to serve upon a habeas corpus petitioner would essentially allow him to
communicate ex parte with the court, contrary to one of the basic tenets of our adversary system.”
Thompson, 427 F.3d at 269 n.7.
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[prescribed by the Supreme Court] shall be of no further force or effect after such rules have
taken effect”).
12. Because Habeas Rule 5, as well as the Federal Rules of Civil Procedure, require
service of the exhibits filed with the Answer, this Court will grant Petitioner’s motion and direct
Respondents to serve on Petitioner hard copies of all documents filed with the Answer, unless
Petitioner notifies this Court and Respondents that he has access to a computer or other device
that would allow him to view the exhibits, if same were copied to a CD. This Court will also
extend Petitioner’s time to file a reply to the Answer until 45 days after he receives the exhibits.
13. An appropriate Order accompanies this Memorandum Opinion.

s/Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
Dated:

March 15, 2012

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