United States District Court, D. New Hampshire
Thurlow, pro se
Elizabeth C. Woodcock, Esq.
J. McAuliffe United States District Judge
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.
Records Filed in this Case
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.
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).
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.
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.
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.
Records Missing from Summary Judgment Record
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)).
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 ...