(HC) Thompson v. Pfeiffer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS RAY THOMPSON, No. 2:19-cv-2175 WBS KJN P 12 Petitioner, 13 v. ORDER 14 CHRISTIAN PFEIFFER, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. One of petitioner’s habeas claims concerns the state court’s denial 19 of his motion to substitute counsel, commonly referred to as a “Marsden1 motion” in California 20 state courts. The state court held a Marsden hearing in September 20162 and sealed the transcript. 21 (ECF No. 15-4 at 23.) Respondent’s lodged documents do not include the sealed Marsden 22 hearing transcript, which is relevant to this Court’s review of petitioner’s claim. 23 On March 21, 2022, this Court ordered respondent to lodge the sealed September 2016 24 Marsden hearing transcript within 14 days of the order. (ECF No. 35.) Respondent filed a 25 1 People v. Marsden, 2 Cal. 3d 118 (1970). 26 2 The reporter’s transcript indicates that the date of hearing was either Wednesday, September 21, 27 2016, or Thursday, September 29, 2016. (ECF No. 15-4 at 5, 12.) The California Court of Appeal’s docket in People v. Thompson (C084825) includes an August 25, 2017 entry for the 28 record of appeal filed, noting “1 sealed RT of Marsden hearing, date 09/26/16 (pgs. 13-28).” 1 || response to the order noting that respondent does not possess the sealed transcript. (ECF No. 36.) 2 Pursuant to Rule 5 of the Federal Rules Governing Section 2254 Cases, respondent is 3 || required to attach to its answer the relevant transcripts. See Rule 5, 28 U.S.C. foll. § 2254. If 4 || portions of a relevant transcript are not lodged with respondent’s answer, “[t]he judge may order 5 || that the respondent furnish other parts of existing transcripts...” See id.; see also Watkins v. 6 || Waddington, 106 F. App’x 582 (9th Cir. July 30, 2004) (vacating the district court’s denial of a 7 || habeas petition and remanding the case so the transcript of state court proceedings can be 8 | obtained and reviewed). 9 Accordingly, IT IS HEREBY ORDERED that respondent is directed to ask the California 10 || Court of Appeal to transmit the September 2016 Marsden hearing transcript to this Court for 11 | lodging under seal. Respondent shall make this request within 14 days of this order. 12 | Dated: March 31, 2022 i Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28