McCain v. Holbrook

Filing 51

ORDER signed by Hon. Michelle L. Peterson, denying as moot petitioner's 30 motion for order mandating access to legal materials. Petitioner's Show Cause Response is RESET to 8/30/2019. (TF)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

STANTON HARRY MCCAIN II,
Petitioner,

9
10
11

Case No. C18-328 RAJ-MLP
ORDER

v.
DONALD R HOLBROOK,
Respondent.

12
13
14

Currently before the Court is Petitioner’s motion for order mandating access to

15

Petitioner’s legal materials. (Dkt. ## 30, 31.) Having reviewed the motion, the response (dkt. #

16

35), the reply (dkt. # 43), heard the arguments of counsel (dkt. # 48), and reviewed the

17

supplemental materials filed by Respondent (dkt. ## 49, 50), the Court DENIES Petitioner’s

18

motion as MOOT (dkt. ## 31, 32).

19

The current motion arises from an Order to Show Cause filed on April 3, 2018 by former

20

United States Magistrate Judge James P. Donohue. (Dkt. # 6.) The Court ordered Petitioner to

21

show cause why his 28 U.S.C. § 2254 habeas action should not be dismissed as barred by the

22

statute of limitations. (Id.) Petitioner’s response to the Court’s order was originally due on May

23

3, 2018. Petitioner requested and received at least six motions for extension of time to respond to

ORDER - 1

1

the Court’s Order to Show Cause. (See e.g. Dkt. ## 8, 13, 18, 24, 29, 34, 45.) Petitioner

2

requested the extensions based primarily on his inability to have access to his legal papers which

3

he represents is necessary to respond to the Court’s Order to Show Cause. To assist Petitioner,

4

the Court appointed counsel to represent Petitioner on November 14, 2018. (Dkt. # 21.) On April

5

15, 2019, Petitioner, through counsel, filed the instant motion asking the Court to order

6

Respondent to provide him access to his legal property, so he could assist his attorney in

7

responding to the Court’s order to show cause.

8
9

Based on Respondent’s response to the motion, it appeared that the parties could reach an
agreement as to a mechanism for affording Petitioner sufficient access to his legal materials so

10

that he may assist his counsel in responding to the Court’s Order to Show Cause. On July 2,

11

2019, the Court held a teleconference hearing to determine whether an agreement could be

12

reached regarding the legal materials. (Dkt. # 48.) As a result of the hearing, Respondent filed a

13

supplement brief and declaration explaining that Petitioner would be permitted to have the

14

equivalent of one box of legal paperwork in his cell at a time (dkt. # 50 (“Hathaway Decl.”) at ¶

15

3.); that Respondent had moved the remainder of Petitioner’s legal materials to a property room

16

located approximately 90-100 yards from Petitioner’s cell; (id. at ¶ 5); and that Petitioner would

17

be permitted to go through his property in that location (id.).

18

Based on the representations made by Respondent, the Court DENIES the motion as

19

MOOT (dkt. ## 30, 31). Petitioner is granted an additional 30-days to respond to the Court’s

20

Order to Show Cause. The Court directs the Clerk to RESET the deadline for Petitioner to

21

respond to the Court’s Order to Show Cause to August 30, 2019, and to send copies of this order

22

\\

23

\\

ORDER - 2

1

to the parties and to the Honorable Richard A. Jones.

2
3

Dated this 3rd day of July, 2019.

A

4
5

MICHELLE L. PETERSON
United States Magistrate Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

ORDER - 3