Opinion
Case No. 03-3100-JAR.
December 29, 2004
MEMORANDUM AND ORDER
This matter is before the Court on petitioner's Motion to Expand the Record (Doc.28) in this action on his petition for federal habeas relief from a state conviction, pursuant to 28 U.S.C. § 2254. Because some of the evidence is relevant to the determination of the merits of the petition, the Motion shall be granted, in part, allowing an expansion of the record.
STANDARD
Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts permits the district court to expand the record "by the inclusion of additional materials relevant to the determination of the merits of the petition." "The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record."
28 U.S.C. § 2254 Rule 7(a).
20 U.S.C. § 2254 Rule 7(b).
ANALYSIS
Petitioner challenges his state court conviction, alleging that trial counsel had a conflict of interest and provided ineffective assistance of counsel. Petitioner seeks to expand the record to include an affidavit of Susan Whitten, the victim's mother, which purports to show that his trial counsel knew about exculpatory evidence that would have impeached the victim's testimony had counsel used the evidence. Because this evidence relates to the merits of one of petitioner's claims of ineffective assistance, the record should be expanded to include this affidavit.
Petitioner also seeks to expand the record to include typewritten letters to the victim from a stalker and a typewritten letter from petitioner to a bank. Petitioner contends that the different typefaces on these letters would have shown that the stalker letters were not written on petitioner's computer, as insinuated by the state and not rebutted by trial counsel. This evidence relates to the merits of petitioner's ineffective assistance claim that his trial counsel failed to object to certain evidence regarding the typewriter used for the stalker letters and petitioner's typewriter. Therefore the record will be expanded to include this evidence.
Petitioner further requests inclusion of a handwritten letter from the stalker and petitioner's own handwritten letter, along with the exhibits used by the handwriting expert at trial to explain her handwriting analysis. The record will be expanded to include this evidence, because it relates to petitioner's claim that trial counsel failed to properly question or examine the handwriting expert.
Similarly, the record will be expanded to include petitioner's time cards, and certain phone records, evidence that relates to his claim that trial counsel failed to offer this evidence concerning events during the time the victim was to have called petitioner.
Petitioner also requests the record be expanded to include a motel registration card that he filled out. A motel clerk identified petitioner as the person who registered at the motel. Petitioner claims that this testimony was subject to impeachment. The motel clerk testified that he was able to identify petitioner after he went back to the motel records and was able to remember a few things. Petitioner alleges that at that time, the clerk was no longer employed at the motel, and that he could not have seen the motel registration card, for it was in the custody of the State by then. But the record already includes testimony about the events surrounding the motel clerk's identification of petitioner. Petitioner has not explained how the motel registration card is relevant to a determination of the merits. Therefore, the Court will not expand the record to include this piece of evidence.
Finally petitioner wishes to ensure that the Court has the full transcript of the preliminary hearing, pre-trial hearings, voir dire, trial, sentencing, and post trial hearings, including motions to vacate conviction and ineffective assistance and conflict of interest of defense counsel. The Court notes that these are already included in the record; thus no expansion of the record is required regarding this evidence.
IT IS THEREFORE BY THIS COURT ORDERED that petitioner's Motion to Expand the Record (Doc. 28) is GRANTED in part and DENIED in part. The documents that will be included in the expanded record must be provided to defendant, and defendant is afforded and opportunity to admit or deny their correctness pursuant to 28 U.S.C. § 2254 Rule 7(c).