Robert V. Towle v. NHSP Warden

2017 DNH 107

• Court: District Court, D. New Hampshire
• Decided: June 6, 2017
• Docket: 15-cv-117-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert V. Towle

v. Case No. 1:15-cv-117-SM Opinion No. 2017 DNH 107 Warden, New Hampshire State Prison

O R D E R

Before the court in this habeas action, is petitioner

Robert Towle’s motion for compliance (Doc. No. 75), requesting

that the court order the respondent to produce trial transcripts

referenced in defendant’s motion for summary judgment (Doc. No.

72). Respondent objects (Doc. No. 76).

Background

The petitioner filed a petition for a writ of habeas corpus

(Doc. No. 1) on April 7, 2015. On April 22, 2016, the

respondent filed an answer to the habeas petition, which stated

that the transcripts identified as relevant by the petitioner

“will be filed conventionally with this Court.” Doc. No. 15, at

2. The respondent filed a motion to dismiss (Doc. No. 18) on

June 28, 2016. On July 1, 2016, the respondent filed

transcripts to be considered by the court in conjunction with

the motion to dismiss, that were accompanied by a cover letter.

The cover letter, which consisted of a list of transcripts submitted, was identified in the docket as an “addendum” (Doc.

No. 19) to the motion to dismiss. Counsel for the respondent

did not send copies of the addendum or transcripts to the

petitioner.1

On April 3, 2017, the respondent filed a motion for summary

judgment (Doc. No. 72), which specifically references the

transcripts submitted as an addendum to the motion to dismiss.

The petitioner has filed the instant motion for compliance (Doc.

No. 75) in an effort to secure the transcripts addended to the

respondent’s motion to dismiss, and upon which the respondent

relies in his summary judgment motion.

Discussion

Towle asks the court to direct that the respondent serve

him with copies of the transcripts filed conventionally in this

matter, citing Rule 5 of the Rules Governing Section 2254 Cases

in the United States District Courts (“§ 2254 Rules”).

Respondent objects, stating that neither § 2254 Rule 5, nor

“this Court’s practice in Section 2254 cases” require him to

serve the petitioner with conventionally filed transcripts.

1The court notes that the addendum indicates that it was copied to petitioner, and that it included an enclosure, but does not make clear that the documents enclosed with/attached to the addendum were not copied to Towle. 2 Doc. No. 76, at 1.

Rule 5 of the Federal Rules of Civil Procedure requires

that all pleadings filed by a party be provided to every other

party to the action. See Fed. R. Civ. P. 5; see also Rule 12,

Rules Governing Section 2254 Cases in the United States District

Court (“§ 2254 Rules”) (Federal Rules of Civil Procedure apply

to habeas proceedings “to the extent that they are not

inconsistent with any statutory provisions or these rules”). “A

copy of a written instrument that is an exhibit to a pleading is

a part of the pleading for all purposes.” Fed. R. Civ. P.

10(c).

In Rodriguez v. Fla. Dep’t of Corrs., the Eleventh Circuit

held that in the context of a state’s answer to a § 2254

petition, “exhibits to the pleading must also be served,

regardless of whether they were filed at the same time.” 748

F.3d 1073, 1076-77 (11th Cir. 2014). This includes documents

that are “filed separate from the answer, but [are] referred to

in it.” Id. at 1076. The Fourth and Fifth Circuits have also

held that “all documents referenced in the State’s answer and

filed with the Court must be served on the habeas petitioner.”

Id. at 1077 (citing Sixta v. Thaler, 615 F.3d 569, 572 (5th Cir.

2010) and Thompson v. Greene, 427 F.3d 263, 268 (4th Cir.

2005)). 3 Here, the transcripts were first mentioned in the

respondent’s April 22, 2016, answer, see Doc. No. 15, at 2; but

were actually entered into the record on July 1, 2016, as an

addendum to the respondent’s June 28, 2016, motion to dismiss

(Doc. No. 18). See July 1, 2016, Addendum (Doc. No. 19). As

the transcripts were referenced in the answer, the transcripts

are treated as a part of the pleading itself. See Fed. R. Civ.

P. 10(c). As Rule 5(a) requires that all pleadings must be

provided to every party, the respondent has the responsibility

to serve the petitioner with a copy of the transcripts.

Moreover, the local rules of this court require that

“[d]ocuments that are filed conventionally shall be

conventionally served in accordance with the Federal Rules of

Civil/Criminal Procedure and the local rules of this court.” AP

3.9. All of the respondent’s pleadings, including the

attachments thereto, therefore, must be served on the petitioner

under Rules 5(a) and 10(c) and AP 3.9.2

2The court assumes that the transcripts respondent has filed are not available in PDF format, as transcripts so available must be filed electronically. See AP 4.3. The ability of the respondent to file transcripts electronically, however, would not relieve him of his obligation to conventionally serve the petitioner in this case with a copy of the transcripts. See AP 2.1(d) (requiring electronically filed documents to be served conventionally on all pro se litigants who are not authorized to proceed electronically in the case in which the documents are filed). 4 Respondent’s counsel claims that her failure to provide the

petitioner with copies of conventionally filed documents in this

case is consistent with § 2254 Rule 5. Section 2254 Rules 5(c)

and 5(d) require that the respondent file, with the answer,

transcripts and other documents. Those rules neither state nor

imply that such attached documents need not be served on the

petitioner. See Crespin v. Stephens, No. 3:15-cv-818-D-BN, 2015

U.S. Dist. LEXIS 137855, at *7, 2015 WL 5924405, at *3 (N.D.

Tex. Oct. 8, 2015) (“Respondent’s inclusion of those portions of

the state court records cited in his answer in a separate filing

with the rest of the state court records – a filing not served

on Petitioner – coupled with his decision not to physically

attach those applicable portions as exhibits to the answer . . .

[and] not serving Petitioner with those portions of the state

court records relied on in – yet not physically attached as

exhibits to – the answer does seem to strain . . . the Habeas

Rules and Civil Rules ‘considered together.’”).

Further, to the extent the respondent’s counsel relies on a

bald assertion that “this Court’s practice,” Doc. No. 76, at 1,

is not to require transcripts to be conventionally served on pro

se prisoners, her reliance is misguided. It is the practice of

this court to ensure that the parties follow all of the

applicable substantive and procedural laws and rules in this and 5 all cases before it. If respondent’s counsel is stating that it

has been her practice to disregard those rules in this court, it

has not been with the court’s knowledge, much less condonation.

Conclusion

For the foregoing reasons, the petitioner’s motion for

compliance (doc. no. 75) is GRANTED. The respondent is ordered

to serve all of the transcripts that have been conventionally

filed in this court on the petitioner on or before July 5, 2017,

and to simultaneously file with the Court a certificate

evidencing such service. Petitioner’s deadline to respond to

the motion for summary judgment (Doc. No. 72) is extended until

September 5, 2017.

SO ORDERED.

______________________________ Andrea K. Johnstone United States Magistrate Judge

June 6, 2017

cc: Robert V. Towle, pro se Elizabeth C. Woodcock, Esq. Lynmarie C. Cusack, Esq.