United States District Court, D. New Hampshire
Robert V. Towle
Warden, New Hampshire State Prison Opinion No. 2017 DNH 107
K. Johnstone United States Magistrate Judge
the court in this habeas action, is petitioner Robert
Towle's motion for compliance (Doc. No. 75), requesting
that the court order the respondent to produce trial
transcripts referenced in defendant's motion for summary
judgment (Doc. No. 72). Respondent objects (Doc. No. 76).
petitioner filed a petition for a writ of habeas corpus (Doc.
No. 1) on April 7, 2015. On April 22, 2016, the respondent
filed an answer to the habeas petition, which stated that the
transcripts identified as relevant by the petitioner
“will be filed conventionally with this Court.”
Doc. No. 15, at 2. The respondent filed a motion to dismiss
(Doc. No. 18) on June 28, 2016. On July 1, 2016, the
respondent filed transcripts to be considered by the court in
conjunction with the motion to dismiss, that were accompanied
by a cover letter. The cover letter, which consisted of a
list of transcripts submitted, was identified in the docket
as an “addendum” (Doc. No. 19) to the motion to
dismiss. Counsel for the respondent did not send copies of
the addendum or transcripts to the petitioner.
April 3, 2017, the respondent filed a motion for summary
judgment (Doc. No. 72), which specifically references the
transcripts submitted as an addendum to the motion to
dismiss. The petitioner has filed the instant motion for
compliance (Doc. No. 75) in an effort to secure the
transcripts addended to the respondent's motion to
dismiss, and upon which the respondent relies in his summary
asks the court to direct that the respondent serve him with
copies of the transcripts filed conventionally in this
matter, citing Rule 5 of the Rules Governing Section 2254
Cases in the United States District Courts (“§
2254 Rules”). Respondent objects, stating that neither
§ 2254 Rule 5, nor “this Court's practice in
Section 2254 cases” require him to serve the petitioner
with conventionally filed transcripts. Doc. No. 76, at 1.
of the Federal Rules of Civil Procedure requires that all
pleadings filed by a party be provided to every other party
to the action. See Fed.R.Civ.P. 5; see also
Rule 12, Rules Governing Section 2254 Cases in the United
States District Court (“§ 2254 Rules”)
(Federal Rules of Civil Procedure apply to habeas proceedings
“to the extent that they are not inconsistent with any
statutory provisions or these rules”). “A copy of
a written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.” Fed.R.Civ.P.
Rodriguez v. Fla. Dep't of Corrs., the Eleventh
Circuit held that in the context of a state's answer to a
§ 2254 petition, “exhibits to the pleading must
also be served, regardless of whether they were filed at the
same time.” 748 F.3d 1073, 1076-77 (11th Cir. 2014).
This includes documents that are “filed separate from
the answer, but [are] referred to in it.” Id.
at 1076. The Fourth and Fifth Circuits have also held that
“all documents referenced in the State's answer and
filed with the Court must be served on the habeas
petitioner.” Id. at 1077 (citing Sixta v.
Thaler, 615 F.3d 569, 572 (5th Cir. 2010) and
Thompson v. Greene, 427 F.3d 263, 268 (4th Cir.
the transcripts were first mentioned in the respondent's
April 22, 2016, answer, see Doc. No. 15, at 2; but were
actually entered into the record on July 1, 2016, as an
addendum to the respondent's June 28, 2016, motion to
dismiss (Doc. No. 18). See July 1, 2016, Addendum
(Doc. No. 19). As the transcripts were referenced in the
answer, the transcripts are treated as a part of the pleading
itself. See Fed.R.Civ.P. 10(c). As Rule 5(a)
requires that all pleadings must be provided to every party,
the respondent has the responsibility to serve the petitioner
with a copy of the transcripts.
the local rules of this court require that “[d]ocuments
that are filed conventionally shall be conventionally served
in accordance with the Federal Rules of Civil/Criminal
Procedure and the local rules of this court.” AP 3.9.
All of the respondent's pleadings, including the
attachments thereto, therefore, must be served on the
petitioner under Rules 5(a) and 10(c) and AP
counsel claims that her failure to provide the petitioner
with copies of conventionally filed documents in this case is
consistent with § 2254 Rule 5. Section 2254 Rules 5(c)
and 5(d) require that the respondent file, with the answer,
transcripts and other documents. Those rules neither state
nor imply that such attached documents need not be served on
the petitioner. See Crespin v. Stephens, No.
3:15-cv-818-D-BN, 2015 U.S. Dist. LEXIS 137855, at *7, 2015
WL 5924405, at *3 (N.D. Tex. Oct. 8, 2015)
(“Respondent's inclusion of those portions of the
state court records cited in his answer in a separate filing
with the rest of the state court records - a filing not
served on Petitioner - coupled with his decision not to
physically attach those applicable portions as exhibits to
the answer . . . [and] not serving Petitioner with those
portions of the state court records relied on in - yet not
physically attached as exhibits to - the answer does seem to
strain . . . the Habeas Rules and Civil Rules
to the extent the respondent's counsel relies on a bald
assertion that “this Court's practice, ” Doc.
No. 76, at 1, is not to require transcripts to be
conventionally served on pro se prisoners, her reliance is
misguided. It is the practice of this court to ensure that
the parties follow all of the applicable substantive and
procedural laws and rules in this and all cases before it. If
respondent's counsel is stating that it has ...