Opinion
CV 05-97 PHX DGC (VAM).
August 18, 2005
ORDER
Pending before the Court are petitioner's "MOTION TO PRODUCE THE TWO POLICE REPORTS" (Doc. 17); "REQUEST FOR EXTENSION OF TIME [TO FILE A TRAVERSE] (Doc. 18); "MOTION: TO REQUEST EXPANSION OF THE RECORD" (Doc. 19); Motion for Leave to File a Traverse (Doc. 20); "MOTION TO AMEND THE ILLEGAL SENTENCE" (Doc. 21); and "MOTION: To Request Court's Permission to Clarify the `Motion to Produce Two Police Reports?" (Doc. 22).
1. MOTION TO PRODUCE TWO POLICE REPORTS
The Court will treat this as a motion for expansion of the record pursuant to Rule 7, Rules Governing § 2254 Cases. (Doc. 17). The granting of such a request by the Court is discretionary and petitioner must show "cause." See Rule 7, Rules Governing § 2254 Cases at Advisory Committee Notes (citing Harris v. Nelson, 394 U.S. 286 (1969)). If petitioner is asking to supplement the record, he has failed to explain the relevance of the documents he attached to his motion. He merely asserts he is entitled to two police reports. Petitioner fails to explain their significance or even specifically identify the nature of these reports. The motion will be denied without prejudice.
2. Request for Extension of Time
Petitioner next requests an extension of time to file a traverse until August 1, 2005. (Doc. 18). The Court notes that petitioner filed a renewed motion to file a traverse and traverse on July 28, 2005. (See Doc. 20). The Court will accept the traverse filed July 28, 2005.
3. MOTION: TO REQUEST EXPANSION OF RECORD
Petitioner next asks permission to expand the habeas record to include:
1. All depositions from the interviewed witnesses including witness Michael Gordon. Relevant to Ground I, II and IV of the habeas petition.
2. All photograph's taken before and after the vehicle was impounded at Western Towing Company, later moved to Biddulphland's vehicle repair shop. Relevant to Grounds I, II and IV.
3. The GRM — vehicle's appraisal report along with the records from Biddulphland. Relevant to Ground I, II and IV.
4. The credit union financial records of the alleged victim, Jason Grant. Relevant to Ground I, III, and II, IV.
5. Michael Gordon's vehicle ins., Records and Photographs taken after the vehicle was released from Western Towing Co., relevant to Ground I, II, III and IV.
6. Western Towing Company records, bill, and/or receipts. Relevant to Grounds I, III.
7. The vehicle original sales leasing documents. Relevant to Grounds I, III, and IV, and II.
(Doc. 19 at pp. 3-4).
The request will be denied. As in his motion to expand the record to include two police reports, petitioner fails to specify precisely why they are necessary to resolution of his habeas claims. The requests are broad and do not appear to be evidence from his trial. Using a motion for expansion of the record to go on a fishing expedition to support his habeas claims is not sufficient "cause" for expanding the record. The motion will be denied.
4. PETITION TO FILE A TRAVERSE
Petitioner requests permission to file a traverse. The Court has examined document 20 and will accept it as petitioner's traverse. (See Doc. 20).
5. MOTION TO AMEND THE ILLEGAL SENTENCE
Petitioner also moves to "Amend the Illegal Sentence." (Doc. 21). A close review of this motion reveals petitioner is raising an argument that he should have been sentenced by the jury, not the judge in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). To the extent petitioner is raising a new claim predicated on Apprendi and Blakely, the motion is improper because petitioner has not sought leave to amend his petition to include this claim. Even if he had, the motion would not be granted because a claim predicated on the principles outlined in these cases may not be applied retroactively to cases on collateral review. See United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002) (holding Apprendi has no retroactive application); Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004) (Blakely not retroactively applicable); see also Cooper-Smith v. Palmateer, 397 F.3d 1236, 1246 (9th Cir. 2005) (reiterating that neither Apprendi or Blakely apply retroactively to cases on collateral review). The motion will be denied.
6. MOTION: To Request Court's Permission to Clarify the "Motion to Produce Two Police Reports"
This appears to be a renewal of petitioner's original motion to produce the police reports. (See Doc. 17). Again, petitioner merely asserts he is entitled to this information in light of his habeas claim challenging the sufficiency of the evidence. Petitioner fails to explain with any specificity why the record should be expanded to include these reports, that is, why the reports are necessary to resolution of his insufficient evidence claim. As such, the motion will be denied.
IT IS THEREFORE ORDERED that petitioner's "MOTION TO PRODUCE THE TWO POLICE REPORTS" (Doc. 17) and "MOTION: To Request Court's Permission to Clarify the "Motion to Produce Two Police Reports" (Doc. 22) are denied without prejudice.
IT IS FURTHER ORDERED that petitioner's "REQUEST FOR EXTENSION OF TIME" until August 1, 2005, to file a traverse (Doc. 18) and "PETITION TO FILE A `TRAVERSE'" (Doc. 20) are granted. The Court will treat Doc. 20 as the traverse.
IT IS FURTHER ORDERED that petitioner's "MOTION: TO REQUEST EXPANSION OF THE RECORD" (Doc. 19) is denied without prejudice.
IT IS FURTHER ORDERED that petitioner's "MOTION TO AMEND THE ILLEGAL SENTENCE" (Doc. 21) is denied.