May 3, 2013
MATTHEW J. HUTCHINSON,
DIRECTOR, NEVADA DEPARTMETNOF CORRECTIONS, ET AL.,
The opinion of the court was delivered by: Miranda M. DU United States District Judge
This represented habeas matter comes before the Court on petitioner's motion requesting submission on the current pleadings (dkt. no. 22) as well as on a preliminary review of the merits.
The motion informs the Court that petitioner will not be seeking to reopen the pleadings following upon the earlier order (dkt. no. 21) allowing an opportunity to do so. The motion will be granted, and the Court therefore will proceed to decision on the petition on the current pleadings, subject to the remaining discussion herein.
Following a preliminary review of the merits, the Court notes that respondents have not filed a copy of the transcript from the October 16, 2008, state post-conviction evidentiary hearing. Prior counsel for respondents stated in the answer that the transcript had been requested a number of times and would be filed on receipt. (Dkt. no. 10, at 3 n.2.) Respondents have not filed the transcript as yet. The state court record materials on file appear to confirm that the transcript was in fact prepared during the state proceedings. (See dkt. no. 13, Ex. 62, at 3 (at electronic docketing page 8)(citing to the transcript in appellate brief).)
The Court additionally would like to have copies of the four pertinent exhibits filed at the evidentiary hearing available in the federal record. The exhibits consist of juvenile court records upon which petitioner's claim of a conflict of interest by defense counsel is based. (See dkt. no. 13, Ex. 62, at 2-3 (at electronic docketing pages 7-8)(describing the four exhibits in question).) Given that the exhibits are from juvenile proceedings, respondents may file the exhibits under seal. If the exhibits already are part of the federal record, respondents instead may reference where the exhibits currently may be found in the federal record in lieu of a redundant filing.
If the state district court clerk continues to delay forwarding the transcript and/or the exhibits to respondents' counsel, counsel may consider whether copies of the materials more expeditiously may be obtained through the Supreme Court of Nevada from the appellate record. If that is not possible and respondents need an order from this Court to expedite production from the state district court clerk, the Court will entertain a motion for an appropriate order to the state court clerk.
It does not appear to the Court that the supplemental record filings will require reopening the pleadings. At the time of the recent motion by the now-represented petitioner to submit the case on the existing pleadings, petitioner had referenced the state court evidentiary hearing in the pro se petition, respondents had stated that a copy of the transcript would be filed, and the transcript was not yet on file. The absence of the transcript from the record at that time thus was a known circumstance when petitioner moved to submit the case on the existing pleadings. The Court will afford petitioner a brief opportunity to request other relief following the supplementation of the record, but the Court otherwise will be proceeding forward to final disposition as promptly as possible.
IT IS THEREFORE ORDERED that petitioner's motion requesting submission on the current pleadings (dkt. no. 22) is GRANTED, subject to the remaining provisions in this order.
IT IS FURTHER ORDERED that, within thirty (30) days of entry of this order, respondents shall file supplemental state court record exhibits with copies of: (a) the transcript of the October 16, 2008, state post-conviction evidentiary hearing; and (b) the four exhibits filed at the evidentiary hearing pertaining to the juvenile proceedings, which may be filed under seal. If copies of the latter items currently are in the federal record, respondents may designate their location in lieu of filing additional copies.
IT IS FURTHER ORDERED that petitioner shall have fourteen (14) days from the filing of the supplemental exhibits to file any motion requesting additional relief from the Court prior to final submission of the case for disposition on the merits.
Requests for extension of the deadlines established herein will be considered only in extraordinary circumstances. Extensions of time based upon scheduling conflicts with other cases on the docket of this Court should be sought in the later-filed case absent such extraordinary circumstances.
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