(HC) Hernandez v. Gastelo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP R. HERNANDEZ, No. 2:19-cv-2414 KJM DB P 12 Petitioner, 13 v. ORDER 14 JOSIE GASTELO, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254, challenging his 2015 conviction for first degree murder. (ECF No. 3.) 19 The petition’s second ground for relief asserts that petitioner’s rights under the Fifth and 20 Fourteenth Amendments were violated the trial court admitted evidence obtained after petitioner 21 invoked his right to remain silent during an interview with a detective. See Miranda v. Arizona, 22 384 U.S. 436 (1966). In the last reasoned state court opinion addressing this ground for relief, the 23 California Court of Appeal reviewed a video exhibit of the interview. See People v. Hernandez, 24 No. C079250, 2018 WL 3566861, at *6 (Cal. Ct. App. July 25, 2018). 25 Pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States 26 District Courts, a court may direct the parties to expand the record by submitting additional 27 materials relating to the petition, including exhibits. 28 U.S.C. foll. § 2254, Rule 7. 28 //// 1 Good cause appearing, IT IS HEREBY ORDERED that respondent is directed to obtain, 2 | if necessary, and then lodge a copy of Exhibit 85, “DVD, Sacramento County District Attorney - 3 | Tnal Support Services, Interview of Phillip Hernandez, 2/27/13” (see ECF No. 26-2 at 53, Trial 4 | Court Exhibit List) within 30 days of the date of this order. 5 | Dated: November 15, 2022 : 8 hes BORAT BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28