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Thurlow v. Zenk

United States District Court, D. New Hampshire

January 8, 2018

Kevin Thurlow
v.
Michael Zenk, Warden, New Hampshire State Prison

          Kevin Thurlow, pro se

          Elizabeth C. Woodcock, Esq.

          ORDER

          Steven J. McAuliffe United States District Judge

         Before the court in this habeas corpus action is respondent Michael Zenk's motion for summary judgment (Doc. No. 10) and petitioner Kevin Thurlow's cross-motion for summary judgment (Doc. No. 13). For the reasons that follow, both motions are denied without prejudice.

         Discussion

         I. Records Filed in this Case

         The respondent, in connection with his answer (Doc. No. 4) to Thurlow's habeas petition (Doc. No. 1), but under separate cover, filed records from the petitioner's state court criminal case, direct appeal, and post-conviction proceedings. See Doc. Nos. 5, 8. Respondent submitted those records to the court conventionally, rather than electronically, with a cover letter from respondent's counsel indicating that petitioner was served with only the cover letter, and not a hard copy of the record documents filed. See id.

         Rule 5(a)(1)(B) 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(a)(1)(B); 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”). Further, “[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. 10(c).

         In Rodriguez v. Fla. Dep't of Corr., the Eleventh Circuit held that in the context of a state's answer to a § 2254 petition, that “[b]ecause the Civil Rules require service of all pleadings, it follows that the 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); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005)). Section 2254 Rules 5(c) and 5(d), which require that the respondent attach to the answer, transcripts and other state court documents, supports the conclusion that such documents be served on the petitioner.

         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 conventionally filed attachments thereto, whether filed with the pleading or separately, must be served on the petitioner under Fed.R.Civ.P. 5(a)(1)(B), 10(c), and AP 3.9.

         It appears from the record in this case that the respondent has not served the petitioner with a copy of the state court records that have been filed with this court in connection with his answer. Accordingly, the respondent must serve Thurlow conventionally with copies of any documents that have been filed in this case in conjunction with letters docketed as Doc. Nos. 5 and 8. Going forward, all documents respondent files in this matter, either conventionally or electronically, must be served on Thurlow.[1]

         II. Records Missing from Summary Judgment Record

         In his motion for summary judgment, the respondent asks the court to deny Thurlow's request for habeas relief on the basis that the Superior Court issued a decision that was not “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Doc. No. 10-1, at 10 (quoting § 28 U.S.C. § 2254(d)(2)). To make a determination as to whether the Superior Court reasonably determined the facts before it in Thurlow's post-conviction proceedings, this court must review the Superior Court's decision in light of all of the evidence before the Superior Court in those proceedings. See Garuti v. Roden, 733 F.3d 18, 22 (1st Cir. 2013) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); 28 U.S.C. § 2254(d)).

         Before the Superior Court at the April 26, 2016 hearing, as an exhibit under seal and subject to a protective order, were the counseling notes of the complainant in Thurlow's criminal case. See Apr. 26, 2016 Hr'g Tr., 2:19, 7:21-22, State v. Thurlow, No. 218-2010-CR-01686 (N.H. Super. Ct., Rockingham Cty.). The counseling notes were specifically referenced and relied upon in the Superior Court's Order denying Thurlow's motion for new trial. State v. Thurlow, No. 218-2010-CR-01686 (N.H. Super. Ct., Rockingham Cty.), July 6, 2016 Order, at 14-17, 19, 20. Also referenced in the July 6, 2016 Order is the affidavit of Attorney Jonathan Saxe, which was filed as an attachment to a discovery motion Thurlow ...


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