Kolvek v. Eberlin

Full title: ROBERT M. KOLVEK, Petitioner, v. MICHELLE EBERLIN, Warden Respondent

Court: United States District Court, N.D. Ohio, Eastern Division

Date published: Jan 25, 2008

Case No. 5:05 CV 2598 (N.D. Ohio Jan. 25, 2008)

Opinion

Case No. 5:05 CV 2598.

January 25, 2008

ORDER

KATHLEEN O'MALLEY, District Judge

This matter arises on Petitioner's Motion for Leave to Expand the Record (Habeas Rule 7) ("Motion for Leave") (Doc. 22), which the Respondent has not opposed. For the reasons outlined briefly below, the Motion for Leave is GRANTED.

I. BACKGROUND

II. DISCUSSION

28 U.S.C. § 2254^{1 2} Rules Governing Section 2254 Cases in the United States District Courts. ^{th th th th}

1 The petition was referred to Magistrate Judge McHargh for preparation of a report and recommendation ("R R") (Doc. 6).

2 The Court is still in the process of analyzing Magistrate Judge McHargh's R R and Petitioner's objections thereto.

As to why it was not previously provided, Petitioner explains that, given the single case number identified in the transcript's case caption, the transcript appears to relate only to an August 12, 2003 sentencing hearing in one of Petitioner's other cases — namely, a drug possession case from Summit County, Ohio (Case No. 2003-02-0551). As the text of the transcript reveals, however, the prosecutor's opening remarks at the August 12^th hearing were:

I believe we are here on two cases, the first one being 03-02-551 . . . On that case were are set for sentencing. We are also here in 03-5-1398A . . . That case is set for trial which is technically scheduled to convene tomorrow.

***

On that case, I have gone back to the grand jury, would like to arraign him on a new charge.

Doc. 22-2 at p. 2 (emphasis added). While the transcript ultimately does not include any further discussion of an arraignment on the new charge, Petitioner argues that the transcript is relevant and should be considered in conjunction with the Petitioner's asserted grounds for relief. Petitioner's request is only that the record in this case be expanded to include the transcript; he does not request leave for supplemental briefing relative to the transcript. Notably, Respondent has not opposed Petitioner's request.

Petitioner's unopposed request presents no identifiable hardship on the Court or Respondent; presumably, this is why Respondent has not opposed it.³ Accordingly, while the Court renders no opinion as to the relevance of the transcript or what weight it deserves, if any, Petitioner's unopposed Motion for Leave appears to be well taken.

3 Rule 7(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires the Court to "give the party against whom the additional materials are offered an opportunity to admit or deny their correctness." Given the apparent authenticity of the material presented ( i.e., a court transcript) and Respondent's failure to oppose the Motion for Leave, which provided the "additional materials" for review, the Court finds that Rule 7(c) is satisfied.

III. CONCLUSION

For the foregoing reasons, Petitioner's Motion for Leave to Expand the Record (Habeas Rule 7) (Doc. 22) is GRANTED . The Court hereby EXPANDS the record in this case to include the transcript attached as Exhibit A (Doc. 22-2) to the Petitioner's Motion for Leave. The Court will consider the transcript for what it is worth.

IT IS SO ORDERED.