(HC) Odom v. De La Cruz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN BIGOSKI ODOM, No. 2:17-cv-0233 JAM AC P 12 Petitioner, 13 v. ORDER 14 D.G. ADAMS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a request to expand the record and 18 add additional facts, ECF No. 48, which the court construes as a motion for clarification. 19 In her request, petitioner states that she would like to file additional documents related to 20 her conviction for torture, including new evidence, but is unsure what steps she needs to take in 21 order to do so properly. ECF No. 48. It is unclear whether petitioner is seeking to simply add 22 additional documents in support of her petition or whether she is also seeking to file a late 23 traverse or amend the petition. If petitioner is seeking to file a late traverse or to amend the 24 petition, she must file a motion for leave that includes a copy of the proposed traverse or amended 25 petition and explains her delay in filing. Any proposed amendments would be subject to the 26 timeliness and exhaustion rules. See, generally, Mayle v. Felix, 545 U.S. 644, 654-55 (2005) 27 (timeliness of amendments); § 2254(b)(1)(A) (exhaustion requirement). 28 //// 1 If petitioner is simply seeking to submit additional exhibits to support her petition, she 2 | may doso. Such documents should be clearly labeled as exhibits to the petition and should 3 || include an index or table of contents. Petitioner is informed, however, that in reviewing her 4 || claims this court may be limited in the first instance to consideration of whatever exhibits and 5 || documents were before the state courts when they ruled on her claims. See 28 U.S.C. § 6 || 2254(d)(1)&(2); Cullen v. Pinholster, 563 U.S. 170, 181-182 (2011). In most cases, evidence 7 || presented for the first time in federal court can only be considered if this court first concludes that 8 || the state court decision was objectively unreasonable. Id. If that happens, the court may then— 9 | under certain circumstances—expand the record with additional evidence or order an evidentiary 10 | hearing. Rule 7, Rules Governing Section 2254 Cases (Expanding the Record); 28 U.S.C. 8 11 |} 2254(e)(1)&(2) (evidentiary hearings). The undersigned expresses no opinion on whether such 12 || evidentiary development might be appropriate in this case. Petitioner is free to file additional 13 || exhibits, but whether the court may consider them remains to be determined. Because the court 14 | has not yet conducted § 2254(d) review, a motion for expansion of the record under Habeas Rule 15 || 7 is premature. 16 Petitioner’s present request also states that the docket reflects she was mailed an “Order 17 || on Motion for Miscellaneous Relief” on July 28, 2020, but that she does not know what that is or 18 || whether she received a copy. The docket entry is referring to the July 28, 2020 order granting 19 | petitioner’s request to use the arguments in the petition and appeal brief as her traverse and 20 || deeming the petition submitted. ECF No. 45. 21 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for clarification, ECF 22 || No. 48, is GRANTED to the extent set forth above. 23 | DATED: February 3, 2021 ~ 24 CtAt0r2— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28