1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 3:21-cv-01395-JLS-AHG 12 Petitioner, ORDER: 13 v. (1) GRANTING PETITIONER’S 14 KATHLEEN ALLISON, Secretary, MOTION FOR LEAVE TO FILE 15 Respondent. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 THE TRAVERSE IN EXCESS OF 17 TWENTY-FIVE PAGES, and 18 (2) DENYING PETITIONER’S 19 REQUEST FOR A COPY OF RESPONDENT’S LODGMENT, and 20 21 (3) DENYING PETITIONER’S REQUEST TO RENEW MOTION 22 FOR COURT ORDER DIRECTING 23 SHERIFF TO RECOGNIZE PETITIONER AS PRO SE LITIGANT 24 25 [ECF No. 41] 26 27 28 1 Before the Court is Petitioner Pedro Rodriguez’s (“Petitioner”) Motion for Leave to 2 File Memorandum of Points and Authorities in Excess of Twenty-Five Pages. ECF No. 41. 3 In his motion, Petitioner requests: (1) leave to file a memorandum of points and authorities 4 in support of his Traverse that exceeds the Court’s page limit; (2) a copy of Respondent’s 5 lodgment; and (3) to renew his previous Motion for Court Order Directing the San Diego 6 Sheriff to Recognize Petitioner as a Pro Se Litigant. Id. at 1. 7 I. BACKGROUND 8 Petitioner, a state prisoner proceeding pro se and in forma pauperis, filed a Petition 9 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 3, 2021. ECF Nos. 1, 10 7. On November 19, 2021, Petitioner filed a Motion for Court Order Directing Sheriff to 11 Recognize Petitioner as a Pro Se Litigant. ECF No. 20. This Court issued a Report and 12 Recommendation, recommending that Petitioner’s motion be denied, which the 13 District Judge adopted over Petitioner’s objections. ECF Nos. 23, 26, 27. After multiple 14 requests for extension, the Court extended the briefing schedule for the Petition, requiring 15 that Respondent Kathleen Allison (“Respondent”) file her Answer to the Petition by 16 February 14, 2022, and that Petitioner file his Traverse by March 18, 2022. ECF No. 30. 17 On February 14, 2022, Respondent filed her Answer, which is forty-three pages, and 18 simultaneously filed a Motion for Leave to File a Memorandum of Points and Authorities 19 in Excess of Twenty-Five Pages. ECF Nos. 34, 35. The Court granted Respondent’s request 20 to file excess pages. ECF No. 39. Respondent also filed a Notice of Lodgment of State 21 Court Record, which is over 6,000 pages. ECF Nos. 36, 37. On February 28, 2022, 22 Petitioner filed the instant motion, requesting the Court increase the page limit for his 23 Traverse to forty-three pages to match the length of Respondent’s Answer. ECF No. 41; 24 see ECF No. 30 at 2 (requiring Traverse be no longer than ten pages in length). On 25 March 7, 2022, Petitioner filed his Traverse, which is approximately forty-three pages. 26 ECF No. 42. 27 / / 28 / / 1 II. DISCUSSION 2 In his Motion, Petitioner requests: (1) leave to file a memorandum of points and 3 authorities beyond the permitted ten pages, (2) a copy of Respondent’s lodgment, and (3) 4 to renew his previous motion regarding pro se litigant status. The Court will address 5 Petitioner’s requests in turn. 6 A. Request to Exceed Page-Limit 7 First, Petitioner contends that he should be permitted additional pages to respond to 8 Respondent’s Answer, which is forty-three pages. ECF No. 41 at 1. Given the Court’s 9 previous order increasing Respondent’s page limit, Petitioner requests the same. Id. 10 Petitioner explains that Respondent’s Answer “is 43 pages and very thorough in opposition 11 and caselaw,” and Petitioner “expects to respond with the same amount [of pages] . . . .” 12 Id. Good cause appearing, the Court grants Petitioner’s request to file a memorandum of 13 points and authorities in support of his Traverse that exceeds the ten-page limit. See ECF 14 No. 30 at 2. Petitioner’s forty-three-page Traverse (ECF No. 42) is permitted to remain on 15 file. 16 B. Request for a Copy of Respondent’s Lodgment 17 Second, Petitioner requests a copy of Respondent’s lodgment. ECF No. 41 at 1. 18 Petitioner contends a copy of the lodgment should be provided to him because he is 19 “without legal work product including the current case file[.]” ECF No. 41-1 at 1. While 20 an indigent criminal defendant has an absolute right to trial transcripts on direct appeal, 21 there is no such right at the collateral relief stage. Dunsmore v. Beard, No. 13-CV-01193- 22 GPC-PCL, 2014 WL 7205659, at *4 (S.D. Cal. Dec. 17, 2014) (citing Griffin v. Illinois, 23 351 U.S. 12, 19 (1956) regarding trial transcripts and United States v. MacCollum, 426 24 U.S. 317, 320–21 (1976) regarding collateral review); see Ruark v. Gunter, 958 F.2d 318, 25 319 (10th Cir. 1992) (applying principle from MacCollum, which addressed § 2255 26 petitions, to cases brought under § 2254). “To obtain free copies of trial records, a habeas 27 petitioner must demonstrate that he is entitled to proceed in forma pauperis, and the court 28 must certify that the petition is ‘not frivolous’ and the transcript is ‘needed to decide the 1 issue.’” Torres v. Diaz, No. 19-CV-01964-LAB-JLB, 2020 WL 905631, at *5 (S.D. Cal. 2 Feb. 24, 2020) (quoting MacCollum, 426 U.S. at 320–21); see Martin v. Harley, No. 3 EDCV-08-581-R-MLG, 2008 U.S. Dist. LEXIS 110400, at *4 (C.D. Cal. Sept. 15, 2008) 4 (“In order to [be] supplied with court documents or transcripts at government expense, 5 when no direct appeal is pending, there must be a showing of particularized need for 6 documents which are not necessary to decide issues in a non-frivolous case.”); see also 7 Dunsmore, 2104 WL 7205659, at *5 (denying request for copy of lodgment because 8 petitioner “has not demonstrated that the petition is not frivolous and that the transcript is 9 required to decide the issue”). 10 Here, Petitioner contends that he is without legal work product and does not have 11 the current case file. ECF No. 41-1 at 1. However, Petitioner provides no argument that his 12 Petition is not frivolous, nor does he provide an argument that the lodgment is needed to 13 decide the issues raised in his Petition. Moreover, Petitioner has already filed his Traverse, 14 which is well-written, well-researched, and already includes portions of the trial record. 15 See ECF No. 42; ECF No. 42-1 at 13–14. 16 Further, in general, “a prisoner has no constitutional right to free photocopying or to 17 obtain court documents without payment.” Bailey v. Williams, No. 2:19-CV-01725-GMN- 18 BNW, 2021 WL 682053, at *2 (D. Nev. Feb. 19, 2021) (citing Johnson v. Moore, 948 F.2d 19 517, 521 (9th Cir. 1991)). The general rule prohibiting free photocopies also applies to an 20 in forma pauperis litigant. Arellano v. Blahnik, No. 16-CV-02412-CAB-MSB, 2020 WL 21 6319130, at *1 (S.D. Cal. Oct. 28, 2020) (collecting cases regarding what fees and costs 22 28 U.S.C. § 1915 does not waive); Davidson v. Kernan, No. 17-CV-00421-H-MDD, 2018 23 WL 2837472, at *42 (S.D. Cal. June 8, 2018) (“The statute providing authority to proceed 24 in forma pauperis . . . does not include the right to obtain court documents without 25 payment.”). Petitioner provides no argument or specific showing of need regarding why he 26 is entitled to a free copy of the more than 6,000-page lodgment without payment. 27 Due to Petitioner’s lack of showing that the state court record is needed to decide an 28 issue in his Petition, and based on the general principles against providing free copies to 1 in forma pauperis litigant, the Court denies Petitioner’s request for a copy of 2 || Respondent’s lodgment. 3 C. Renewed Request for Court Order Directing Sheriff to Recognize 4 Petitioner as a Pro Se Litigant 5 Third, Petitioner seeks to renew his prior Motion for Court Order Directing Sheriff 6 Recognize Petitioner as a Pro Se Litigant. See ECF No. 20. Petitioner does not provide 7 ||any new arguments that the Court did not already consider when it issued its Report and 8 Recommendation regarding Petitioner’s previous identical request. See ECF Nos. 20, 23. 9 || For the reasons already stated in the Court’s Report and Recommendation, which was 10 || adopted by the District Judge over Petitioner’s objections, the Court denies Petitioner’s 11 ||request to renew his previous motion. ECF Nos. 23, 26, 27. 12 CONCLUSION 13 For the reasons set forth above: 14 (1) Petitioner’s motion for leave to file a memorandum of points and authorities in 15 excess of ten pages (ECF No. 41) is GRANTED and Petitioner’s forty-three- 16 page Traverse (ECF No. 42) is permitted to remain on file; 17 (2) Petitioner’s request for a copy of Respondent’s lodgment is DENIED; and 18 (3) Petitioner’s request to renew his Motion for Order Directing Sheriff to 19 Recognize Petitioner as a Pro Se Litigant is DENIED. 20 21 IT IS SO ORDERED. 22 llDated: April 4, 2022 - 33 _Abiomt. Xl Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28