Grenning v. Key

Filing 39

ORDER ON RESPONDENT'S 30 OBJECTION TO AND APPEAL FROM MAGISTRATE JUDGE'S 28 ORDER, signed by Judge Robert J. Bryan. The Respondent's Objection IS DENIED and the appeal IS DISMISSED. This case is fully RE-REFERRED to U.S. Magistrate Judge Christel. **3 PAGE(S), PRINT ALL** (Neil Grenning, Prisoner ID: 872019)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NEIL GREENING,

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CASE NO. 16-5983 RJB DWC
Petitioner,

v.
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JAMES KEY,

ORDER ON RESPONDENT’S
OBJECTION TO AND APPEAL
FROM MAGISTRATE JUDGE’S
ORDER

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Respondent.
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This matter comes before the Court on the Respondent’s Objection to and Appeal from

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Magistrate Judge’s Order. Dkt. 30. The Court has considered the pleadings filed regarding the

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appeal and the remaining record.

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Petitioner filed this habeas corpus case, pro se, seeking relief from his 116 year sentence

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for multiple-count convictions of child sex offenses involving two young boys. Dkt. 1. This

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habeas petition questions, in part, the sufficiency of the evidence.

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On June 16, 2017, the U.S. Magistrate Judge assigned to this case issued an order

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requiring the Respondent to file a plan with Court by July 7, 2017 on a way to supplement the

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record with the photographs, audio recordings, and other evidence which was submitted to the

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jury and relied on by the state courts for Petitioner’s conviction, to the Court and the Petitioner.

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Dkt. 28.

ORDER ON RESPONDENT’S OBJECTION TO AND APPEAL FROM MAGISTRATE JUDGE’S ORDER - 1

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On June 23, 2017, Petitioner filed a letter stating that he did not feel he needed to review
any supplemental evidence at this time. Dkt. 29.
On June 26, 2017, Respondent filed the instant Objection to and Appeal from Magistrate

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Judge’s Order. Dkt. 30. Respondent points out that the supplements to the record the court

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requested contain sensitive, sexually explicit materials involving minors, which are under seal

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and in the custody of the Clerk of the Pierce County Washington Superior Court. Id.

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Respondent notes the difficulty in getting these materials, especially to Petitioner, who is in

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custody, considering all the materials are considered contraband by the Washington Department

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of Corrections. Id.

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On July 5, 2017, Petitioner filed a response to the Respondent’s Objection and Appeal,
again indicating that he did not feel he needed to see the evidence again at this time. Dkt. 31.
On July 5, 2017, the Magistrate Judge issued an order giving the parties an opportunity to

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brief whether Petitioner should be appointed counsel for the limited purpose of resolving issues

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regarding the requested supplemental record. Dkt. 32. After the parties responded and did not

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object, on July 25, 2017, a federal public defender was appointed for Petitioner; the federal

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public defender’s “representation is limited to matters related to the production and review of any

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supplemental record.” Dkt. 37. The lawyers for the parties were then ordered to develop a joint

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plan for production and review of the supplemental evidence. Id.

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The Respondent’s Objection to and Appeal from Magistrate Judge’s Order (Dkt. 30)

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should be denied and the appeal dismissed. Respondent acknowledged that the appointment of

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counsel for Petitioner “moot[ed] most of the concerns Respondent has voiced in response to the

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Court’s [June 16, 2017] Order Directing Respondent to Supplement the Record.” Dkt. 36. This

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Court agrees. To the extent it still applies and has not been superseded by July 25, 2017 order

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ORDER ON RESPONDENT’S OBJECTION TO AND APPEAL FROM MAGISTRATE JUDGE’S ORDER - 2

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that the parties’ lawyers develop a plan to supplement the record, the June 16, 2017 Order

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Directing Respondent to Supplement the Record (Dkt. 36) should be affirmed. The parties’

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lawyers are encouraged to work together to resolve the evidentiary issues that arise. While the

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referral was not fully withdrawn, this case should be fully re-referred to Magistrate Judge

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Christel for further proceedings consistent with this opinion. Magistrate Judge Christel, in a case

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challenging the sufficiency of the evidence, needs to see and consider the evidence.

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ORDER
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The Respondent’s Objection to and Appeal from Magistrate Judge’s Order (Dkt.
30) IS DENIED and the appeal IS DISMISSED;



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To the extent it still applies and has not been superseded by July 25, 2017 order

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that the parties’ lawyers develop a plan to supplement the record, the June 16,

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2017 Order Directing Respondent to Supplement the Record (Dkt. 28) IS

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AFFIRMED; and
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This case is fully RE-REFERRED to U.S. Magistrate Judge Christel for further
proceedings consistent with this opinion.

The Clerk is directed to send uncertified copies of this Order to U.S. Magistrate Judge

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Christel, all counsel of record, and to any party appearing pro se at said party’s last known

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address.

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Dated this 2nd day of August, 2017.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON RESPONDENT’S OBJECTION TO AND APPEAL FROM MAGISTRATE JUDGE’S ORDER - 3