Craven v. Robertson

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KALVIN N. CRAVEN, Case No. 20-cv-01933-SI

8 Petitioner, ORDER RECONSIDERING EARLIER 9 v. ORDER AND PERMITTING AUGMENTATION OF THE RECORD 10 JIM ROBERTSON, Re: Dkt. No. 23 11 Respondent.

12 13 Petitioner moved to augment the record in this habeas action with two cell phone videos and 14 a surveillance video that were admitted in evidence at petitioner’s state court criminal trial. Docket 15 No. 13. Respondent filed a response explaining that Respondent did not have access or control of 16 the trial exhibits including the videos and that an order from this court to the Alameda County 17 Superior Court would be necessary to obtain the videos. Docket No. 14. Respondent submitted 18 copies of still photos from the videos, as only still photos had been served on Respondent during the 19 state court appeal. Id. The court denied the motion to augment the record, explaining that federal 20 habeas review is “‘limited to the record that was before the state court that adjudicated the claim 21 on the merits,’” exhibits typically are not part of the record on appeal, and the California Court of 22 Appeal had described the video evidence in its decision. Docket No. 16 at 1-2 (quoting Cullen v. 23 Pinholster, 563 U.S. 170, 180-81 (2011)). The court also explained that “[u]nless a party shows the 24 state appellate court’s description of physical evidence to be materially inaccurate – which petitioner 25 has not – that is the description this court will use in adjudicating his federal habeas claims.” Id. at 26 2. 27 1 Petitioner now moves for reconsideration of the order denying augmentation of the record, 2 arguing for the first time that the California Court of Appeal actually did have the video exhibits 3 || when it considered petitioner’s case and later returned the video exhibits to the Alameda County 4 || Superior Court. In light of the foregoing, petitioner’s motion for reconsideration is GRANTED. 5 Docket No. 23. The order denying augmentation of the record (Docket No. 16) is VACATED. The 6 || court will permit him to augment the record in this federal habeas action. 7 Although respondent suggested that this court could order the Alameda County Superior 8 Court to deliver the video exhibits, the better approach is to require petitioner to obtain copies of the 9 video exhibits (if he does not already have them) and then file them in this action. This will avoid 10 || any possible overreach of this court’s authority — as it is not clear that this court has the authority to 11 order a state superior court to deliver to this court exhibits or copies of exhibits in its files. See Clark 12 v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are without power to 5 13 || issue writs of mandamus to direct state courts or their judicial officers in the performance of their 14 duties.”); see also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ 3 15 of mandamus that would order state trial court to give petitioner access to certain trial transcripts 16 || which he sought in preparation for filing state post-conviction petition). 3 17 No later than March 12, 2021, petitioner may augment the record by filing a copy of the 18 video exhibits that were used at his trial and were transmitted to the California Court of Appeal for 19 consideration in the appeal in his criminal case. 20 Because the court must wait for the deadline for petitioner to augment the record, the court 21 also sua sponte extends the traverse deadline. Petitioner must file and serve his traverse no later 22 than March 12, 2021. This deadline will not be further extended. 23 IT IS SO ORDERED. 24 || Dated: January 21, 2021 Site WU tee 25 6 SUSAN ILLSTON United States District Judge 27 28