Opinion
CIV 00-845 JP/KBM.
January 10, 2001.
ORDER TO SUPPLEMENT RECORD
This matter is before the Court on Juan Vitals Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Rule 7(a) of the Rules Governing Habeas Corpus Under Section 2254 provides that [i]f the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition. Rule 5 permits the Court to order further portions of the existing transcripts be furnished. Having reviewed the record presently before me, I find that it is necessary for Respondents to supplement the record before a disposition can be recommended. A brief factual and procedural background of the case is set forth below to put the need for supplementation in context.
I. Procedural Background
Almost immediately after being sentenced, Vital filed a pro se motion for leave to withdraw his Alford plea because, he contended, it was not a knowing and intelligent waiver of his right to trial. He requested a hearing on the motion and that a Spanish interpreter be provided for the hearing. Answer, Exh. L (all exhibits cited herein are those attached to the Answer). The record does not reflect that a hearing was held. In October, 1998, the trial judge denied the motion by saying a review of the transcript of the plea [apparently the rough draft provided as Exhibit J] clearly shows that the plea was voluntary and knowingly done. Exh. M.
In March 1999, Vital filed a petition seeking state habeas relief on federal constitutional grounds and set forth four claims. Exh. Q. In Claim One, he asserted that alleged that his plea was involuntary because: (1) he was presented with it on the eve of trial, and (2) he was coerced by his attorney to accept the plea when she told him that he would have no chance of convincing a jury of his innocence and that an all white jury would be seated. Id. at 3-4. Vital contended that he on several occasions attempted to dismiss his attorney for her unwillingness to allow him to aid her in his defense. Id. at 4. In Claim Two, Vital asserted that he was mentally incompetent to enter a plea because: (1) the charges and possible sentence were not interpreted to him in language he could understand, and (2) he was under the influence of a narcotic, (Heroin), at the time the plea was entered. Id. at 5-6. Claim Three presented a procedural due process claim alleging that the states factual basis regarding a charge differed from that charged in the indictment. Id. at 8. Finally, Claim Four alleged ineffective assistance of counsel in (1) not diligently investigating and preparing for trial and (2) induc[ing] [Defendant] into entering a plea through coersion (sic) and intimidation. Id. The New Mexico Supreme Court summarily denied certiorari on June 16, 1999. Exh. T.
II. Necessary Supplementation
On June 9, 2000, Vital filed his federal petition raising the same four grounds he raised in his state petition plus the claim of error he raised before the New Mexico Supreme Court. In support of the claims, Vital cites to Exhibits A, B, C, D, E and G, none of which are attached to the copy of the state petition that appears in Respondents Answer.
The Exhibits C, D, E, and G that are attached to Vitals federal petition do not show that they were filed in the state proceedings, and it is unclear whether Vital contends they are the same exhibits he allegedly filed with his state petition. In addition, Exhibit C contains two separate documents, a letter and an affidavit, neither of which are dated. Moreover, Respondents Answer does not contain a final and certified copy of the plea transcript and does not contain a docket sheet.
Wherefore,
IT IS HEREBY ORDERED THAT consistent with Habeas Rule 7(b) requiring submission of supplemental materials to Petitioner, Respondents supplement the record to provide a final and certified copy of the transcript, a copy of the docket sheet, and any other portions of the record or materials that will clarify what was submitted to the state court and when it was submitted.
IT IS FURTHER ORDERED THAT Respondents file and serve their supplemental materials by February 9, 2001 and that Petitioner file his response to the supplemental materials by March 2, 2001 .