Craven v. Robertson ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KALVIN N. CRAVEN, Case No. 20-cv-01933-SI 8 Petitioner, ORDER DENYING MOTION TO 9 v. AUGMENT RECORD AND GRANTING EXTENSION OF 10 JIM ROBERTSON, TRAVERSE DEADLINE 11 Respondent. Re: Dkt. Nos. 13, 15 12 13 Petitioner has filed a motion to augment the record in this habeas action with two cell phone 14 videos and a surveillance video that were admitted in evidence at petitioner’s state court criminal 15 trial. Docket No. 13. Respondent filed a response explaining that Respondent did not have access 16 or control of the trial exhibits including the videos and that an order from this court to the Alameda 17 County Superior Court would be necessary to obtain the videos. Docket No. 14. Respondent 18 submitted copies of still photos from the videos, as only still photos had been served on Respondent 19 during the state court appeal. Id. 20 Federal habeas “review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was 21 before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 22 180-81 (2011). Here, that means that this court must review the same record that the California 23 Court of Appeal reviewed when it adjudicated petitioner’s constitutional claims regarding the 24 videos. Exhibits, such as the videos, typically are not part of the record on appeal and the reviewing 25 court instead relies on the description of the evidence in the appellate record; the reviewing court 26 might then include a description of the evidence in its opinion. For example, the cell phone videos 27 were described in the California Court of Appeal opinion as “two short videos downloaded from 1 video were different.” Docket No. 12-3 at 4. “[T]here was no direct evidence that one of the guns 2 || possessed by appellant in the cell phone videos was the same gun used in the charged robberies. 3 But such an inference could be drawn.” Jd. at 5. And the surveillance video was described in the 4 || California Court of Appeal opinion as “[s]urveillance video from a security camera located at the 5 Champa Garden restaurant [that] captured the robbers pulling up in a silver Nissan Altima with 6 || license plate number 7SIK335, getting out, walking down the sidewalk and then, after being out of 7 sight, fleeing the scene with a number of bags in their hand.” Jd. at 3. Unless a party shows the 8 state appellate court’s description of physical evidence to be materially inaccurate — which petitioner 9 || has not — that is the description this court will use in adjudicating his federal habeas claims. The 10 || motion to augment the record with the videos therefore is DENIED. Docket No. 13. 11 Petitioner’s request for an extension of the deadline to file his traverse is GRANTED. 12 Docket No. 15. Petitioner must file and serve his traverse no later than November 13, 2020. 5 13 IT IS SO ORDERED. 14 Dated: September 3, 2020 Site WU tee SUSAN ILLSTON = 16 United States District Judge 18 19 20 21 22 23 24 25 26 27 28