*1 RODRIGUEZ, Moise Petitioner-
Appellant,
v.
FLORIDA DEPARTMENT OF
CORRECTIONS, Respondent-
Appellee.
No. 12-10887.
United States Appeals, Court of
Eleventh Circuit.
April
Janice Bergmann, Louise Federal Public Office, Lauderdale, FL, Defender’s Fort Caruso, Defender, Michael Public Federal Office, Miami, Federal Public Defender’s FL, for Petitioner-Appellant. Mclntire,
Katherine Attorney General’s Office, Beach, FL, Bondi, West Palm Pam *2 Miami, FL, magistrate judge, who Office, the case to for ferred Attorney General’s why Mr. the State to show cause ordered Respondent-Appellee. granted. not be petition should Rodriguez’s judge’s order also directed magistrate appendix a comprehensive to file State pleadings, tran- copies with of various briefs, motions, and other records scripts, JORDAN, Circuit MARTIN Before proceedings. state court previous BAYLSON,* Judge. District Judges, and 5,May on The State filed its answer 2011, § Rodriguez’s that Mr. arguing MARTIN, Judge: Circuit Throughout denied. its petition should be pris- is a Florida state Rodriguez Moise answer, specific num- the State referred thirty-year term of serving oner who filing A after its exhibits. week bered from the Dis- appeals He imprisonment. with the State filed these exhibits his motion to recon- denial of trict Court’s Appendix. the District Court as its § 2254 the denial of his 28 U.S.C. sider Mr. Although the State served Rodri- appeal concerns Rodriguez’s Mr. petition. answer, it never copy with a of its guez failure to Attorney General’s the Florida copy him with a of the served of exhibits appendix serve him with the in that answer. it had referred to (“Appen- from its answer separately filed Rather, the served a “Notice of Con- State dix”), District Court’s refusal and the Mr. Rod- Filing Appendix” ventional of those exhibits referenced compel service In an effort to riguez attachments.” “w/o Rodriguez argues Appendix. Mr. filing before his get the State’s exhibits abused its discre- that the District Court Rodriguez filed a motion reply, Mr. After a careful review regard. tion in this exhibits, of the referenced compel service oral and with the benefit of judge denied. The magistrate which the that the State was argument, we conclude denied Mr. Rodri- magistrate judge also to serve Mr. Rodri- procedurally required motion for reconsideration of the guez’s Ap- included guez with the exhibits compel. his motion to denial of in its answer. It pendix and referenced an abuse of discretion was therefore Report his magistrate judge deny Rodriguez’s Mr. the District Court 30, September and Recommendation reconsideration, which he filed motion for Rodriguez’s Mr. recommending that get in an these documents. effort In Re- altogether. denied petition be magistrate judge referred to the
port, the I. exhibits, Rodriguez had which Mr. State’s 20, 2011, the yet to receive. On October was convicted Rodriguez In Mr. adopting District entered an order thirty-year term of and sentenced to a entirety denying Mr. Report its state court. imprisonment in Florida the merits. Rodriguez’s petition on post-con- his state exhausting after objected magis- remedies, Rodriguez Rodriguez filed a Mr. viction Mr. and moved for recon- pursuant judge’s Report to trate petition to vacate his sentence Court’s denial of § re- sideration of the District 2254. The District Court U.S.C. * sitting by designation. Pennsylvania, Baylson, United States Honorable Michael M. Judge for the Eastern District District § reiterating Rodriguez argues that he had never Mr. petition, his procedural exhibits referred given copies governing been argued He actions service of at least the State Court. Appendix him exhibits in the give failure to the exhibits referenced the State’s basis, State’s answer. says rules and his constitu- On he violated the District rejected legal The District Court Court committed rights. tional *3 denying error in compel denied Mr. Rodri- his motion to ser- arguments both and exhibits, repeated vice of these guez’s motion reconsideration. compounded this error when it denied his appeal, primary question On before motion for response, reconsideration. simply Rodriguez is whether Mr. us Attorney argues General that service procedurally entitled service of ex- type filing of this of is never required, or in Appendix hibits included the State’s alternatively that it required was not in referenced its answer.1 The answer to particular this case. conclude, question, yes. that we is consideration,
After careful we conclude that a state is a petition- serve II. § er with its answer to a 2254 We review District Court’s order de- case, Most important this we also con- nying a motion for reconsideration for clude that documents that abuse of discretion. Richardson v. John- are referenced in the answer and filed with (11th Cir.2010). son, 734, 598 F.3d 740 A are part Court whether District Court abuses its discretion when it filings together made or at differ- law, “applies wrong follows wrong being ent times. This service of procedure, on clearly bases its decision exhibits, itself, these like the answer facts, erroneous or commits a clear error procedurally required.2 Appendix Brown, in judgment.” United States v. this case a collection of fourteen docu- (11th Cir.2005). 1257, 415 A F.3d 1266 court, ments filed with the twelve of which misinterpretation District Court’s or mis- are referenced the State’s answer. application procedural of a rule constitutes trigger Those referenced exhibits a service Richardson, an abuse of discretion. See requirement the State did not meet and at 598 F.3d 738-40. that the District failed to enforce. appeal light At issue in this is whether the and in the proce- On described, Attorney obliged General was to serve Mr. error we have District dural Rodriguez with the exhibits included in the Court abused its discretion when denied after, Appendix filed Rodriguez’s one week but cited Mr. motion for reconsidera- throughout, the State’s answer to his tion. Rodriguez’s compel, 1. Mr. with motion deni- hibits filed the District Court refer- al of which formed the basis of the motion for Concurring Op. enced in the answer. See review, only request- we reconsideration now 1082, But more often the Concurrence ed service of the twelve exhibits referenced in says adopting that we are a “broad” rule that the State's We therefore do not con- answer. would service of the entire record procedural sider whether the rules would re- regardless filed with the District Court quire remaining service of the two exhibits every whether document in the record is ref- Appendix included in the but not referenced 1083, 1086, erenced id. at in the answer. See in the answer. 1087,1087-88. opinion today Our does not go sug- so far as the Concurrence sometimes recognizes
2. The Concurrence several times holding requires gests. that our service of those ex- 1076 re- explicitly do not The Habeas Rules
A.
answer on a habeas
quire service of the
mindful at the outset
We are
Governing § 2254
Rules
petitioner. See
are two sources
there
5;
Thompson,
also
see
primary-
proceedings.
Advisory
But the
Committee
F.3d at 268.
Governing Section
the Rules
source is
Notes,
in-
are “a reliable source of
District Courts
States
in the United
Cases
rule,”
of a
United
sight
meaning
into the
Rules”). However,
(“Habeas
if
Habe-
Vonn,
6,
64 n.
v.
535 U.S.
States
fully
proper
delineate the
Rules do not
L.Ed.2d 90
1049 n.
S.Ct.
under
requirements
ifor
procedure,
(2002),
Rule 5 “neces-
confirm
clear,
may turn
courts
these Rules are
of the answer
sarily implies”
Procedure
Rules of Civil
to the Federal
attorney
proce-
is a
on the
or his
(“Civil Rules”)
any procedural
to fill
requirement.
Rules
dural
lingering ambiguities.
and resolve
gaps
*4
Cases,
Advisory
§
Commit-
2254
Cases,
§
Rule
2254
Governing
Rules
See
Note,
Adoption.
1976
tee’s
Procedure,
(“The
12
Rules of Civil
Federal
they
that
are not inconsistent
to the extent
Rules are even
complementary
The
Civil
any statutory provisions or these
with
Rules,
the Civil
more definitive. Under
rules,
un
applied
proceeding
to a
every
any pleading must be served
81(a)(4)
rules.”);
these
Fed.R.Civ.P.
der
that an
party,
question
and there is no
(“These
ha-
proceedings for
apply
rules
such as a state’s
complaint,
answer to a
...
to the extent
that
corpus
beas
pleading
§
is a
petition,
answer to a
2254
...
not
proceedings
in those
is
practice
requirement.
this
purposes
statute,
in a federal
the Rules
specified
7(a)(2). Thus,
5(a)(1)(B),
See Fed.R.Civ.P.
Cases,
2254
or the
Governing Section
§
governing
pro-
2254
Governing
Section
2255
Rules
in
that an answer
ceedings “mandate
”). Because the
Rules rel
Cases....
Civil
... must be
corpus proceeding
habeas
not
resolution of this case are
evant to the
427
petitioner.” Thompson,
served on
with the Habeas Rules
inconsistent
269;
Sixta,
F.3d at
F.3d at
see also
statutory provision, we draw on both
other
(agreeing
Thomp-
with
decision
decision, just as our
making
sources in
our
son,
in that case the
noting
that
that have considered this
sister Circuits
“rejected
respondent’s
Fourth Circuit
done. See Sixta v.
question have also
rules do not
argument
applicable
that the
Cir.2010)
Thaler,
(5th
569, 572
615 F.3d
answer”).
of even the
require service
10(c)
5(a),
(relying on
Rules
Civil
require
plainly
conclude that “the rules
next ask whether documents
We
respondent
that the
serve both the
answer,
from the
but re
separate
any exhibits attached thereto on the
it,
part
ferred to
considered
Greene,
Thompson v.
petitioner”);
habeas
subject
also
answer and are therefore
(4th Cir.2005)
(rely
268-69
427 F.3d
requirement. The answer to
the service
10(c)
5(a)
Rules
to reach
ing on Civil
under
Rules is
question
this
Civil
conclusion).
the same
clearly yes.
provide
Rules
Civil
instrument that is
exhibit
“written
B.
pleading for
pleading
part
to a
is a
10(c). Be
First,
purposes.”
all
Fed.R.Civ.P.
we consider whether service
require service of all
cause the Civil Rules
of a
answer to a
2254 habeas
state’s
the exhibits to the
pleadings, it follows that
procedurally required.
petition served,
pleading
regardless
must also be
situation which the Fourth Cir-
they
whether
were filed at the
time.
same
cuit’s Mr. Thompson found himself is re-
None of the Habeas Rules are inconsistent markably similar to that of
Rodriguez
Mr.
with
Civil Rule service requirement.
here.
In Thompson, the State filed an
more,
What
we can conceive
no
rea-
answer to a
that attached
requirements,
son
these
cement
twenty exhibits. 427 F.3d at
“an elementary step
litigation
in our
Attorney
General “relied on
judicial system,”
Thompson,
see
427 F.3d the Exhibits for his contentions on why
at
apply
equal
should not
with
force
Thompson
entitled to habeas cor-
context.
See Rules
pus relief.”
Id. But the State did 12;
Sixta,
§ see also
615 serve these exhibits on
Thompson,
Mr.
(“Considered
together,
F.3d at
serving
instead
only the answer’s text and
rules plainly
respondent
“an index of the various Exhibits.”
Id.
serve
the answer and any
both
omitted).
(quotation marks
Mr. Thompson
thereto on
petition-
attached
the habeas
asked for
times,
the exhibits several
main-
er.”).
taining that
ability
“his
to respond to the
Answer was materially
hindered
said,
As
we are not alone in
we
Attorney General’s failure and refusal to
finding that all documents referenced in
serve the Exhibits.”
Id.
266. The Dis-
the State’s answer and filed with the Court
*5
Court,
order,
trict
a single
in
dismissed
must
served on the
be
habeas petitioner.
Mr. Thompson’s habeas claims and denied
Both the Fourth and
Fifth
the
Circuits—
his motion
compel production
to
only
the
other
Appeals
Circuit Courts of
State’s exhibits.
Id. The
that
Fourth Circuit
have considered this question—
found
only
this to
repugnant
the same
be
to
reached
conclusion we reach to-
the
day
Rules,
relying
very
on the
Habeas and
procedural
same
but also
Civil
inconsis-
Thompson,
rules.
198, 210, 126 S.Ct.
have a
must
petitioner
that
strated
(2006)
District Court
that a
(noting
376
challenge the
to
opportunity
meaningful
on timeliness
deciding a habeas
procedural
rulings
propriety
“must
party
either
not raised
grounds
close
present
often
These cases
grounds.
op-
and an
fair notice
parties
accord
See,
to debate.
subject
calls which
If
positions”).
their
present
to
portunity
1277,
Hall,
1289-
F.3d
v.
e.g., Conner
arguably merito-
raises
then
petitioner
Cir.2011)
(11th
(disagreeing with
nec-
Court would
the District
points,
rious
Court’s determina-
reversing the District
have to review
again,
yet
essarily,
procedur-
claim
that
Conner’s
its
tion
Mr.
to reevaluate
record
arguments
defaulted).
ally
nothing in
We see
position.
preliminary
consum-
a time
calls for such
rules that
the docu-
holds whether
result
The same
process.
onerous
ing and
the Dis-
by the
lead
State
proffered
ments
claim
petitioner’s
reject
trict Court
event,
petitioner
a habeas
And
jurisdictional
instead on
or
on the merits
proce-
out on a
thrown
claims are
whose
impor-
And this is
grounds.
procedural
or
ground deserves
jurisdictional
or
dural
corpus proceedings
Federal habeas
tant.
respond
opportunity
an
much of
just as
petitioner
chance a
are the last
petitioner
as the
answer
to the State’s
violations
arguable constitutional
present
the merits.
dismissed on
claims are
whose
correcting
capable of
to a court
and errors
§ 2254
Rules
See Rules
an
having
much rides
Therefore
filing
them.
governing
(establishing
way
structured in
process
adversarial
as well as discov-
of pleadings
and contents
get
equips
District
that best
based
drawing
distinction
ery without
Thomas,
U.S.
v.
right.
Lonchar
likely
See
a claim
on which
grounds
on the
1293, 1299,
134 L.Ed.2d
decided).
116 S.Ct.
for in the
rule
called
to be
(“Dismissal
(1996)
of a
full and fair
extend a
would
Concurrence
first
matter,
serious
particularly
petition is
peti-
to those
respond
opportunity
petitioner
denies
for that dismissal
merits of
enough to have the
lucky
tioners
entirely,
Writ
protections
Great
claims reached.
their
important
interest
injury to
risking
very real
ignores
This distinction
Neither the text
liberty.”).
human
probability
possibility indeed,
—that
—
to us
Rules reveal
the Civil
Habeas nor
juris-
even a
would base
District Court
ser-
from traditional
any reason to deviate
ruling on docu-
or
dictional
create,
so as to
requirements
vice
the State’s
alongside
ments
ha-
hierarchy
suggests,
Concurrence
(for
showing
transcripts
example, trial
tools
by giving some the
petitioners,
beas
due to
defaulted
procedurally
a claim
State’s
to all of the
necessary
respond
objection).
If
contemporaneous
of a
lack
but not others.
arguments
pur-
to a
points
document
the State
the Fourth Circuit
mention that
It
did not
bears
to show that
ports
rejected
Con-
has,
implicitly,
claim,
at least
procedurally
that it is
his
exhaust
should
that service
suggestion
currence’s
defaulted,
why should
*8
the District
way
in which
depend on
to review
opportunity
meaningful
have
Thompson,
petition.
Court decides
to the District
explain
and
the document
District
noted
the Fourth Circuit
wrong?
position
why the State’s
respond
Thompson to
“ordered
oppor-
Court had
deny petitioners
If
we were
that
assertion
Attorney General’s
in
face of our
do so
we would
tunity,
certain of his habeas corpus claims had
coming to rely upon it. Our ruling no
defaulted,
been procedurally
but it did not
requires
more
the State to search through
Thompson
authorize
to address the An-
the record of a
5(c)
case than Habeas Rule
swer’s contentions on the merits of his
already does.
Rules Governing
claim.”
that Thompson Mr. should have been Finally, emphasize we that providing only served with those documents re- records to at one time or lated to the State’s position on the merits another during his state prosecution and of his claim. Neither did the Fourth Cir- appeal direct by no means assures that cuit imply that the District Court’s deci- he will have those records at the critical sion to reach the merits of some of Mr. moment the State files its answer to his Thompson’s claims at all relevant to habeas petition and specific references its decision on the requirement. service documents. starters, For it will often be though Even the facts of the clearly case difficult for a District Court figure out presented the Fourth Circuit with the op- whether a petitioner got the records. We portunity to draw the line the Concurrence also know prisoner’s that a papers are us, urges upon it declined to do so.5 Rath- lost, often damaged, destroyed during er, the Fourth Circuit was clear in its his incarceration. And civil re- service requirement the State serve its an- quirements were not designed swer “along with all of its exhibits” in provide every those single party in documents case can party is “not it longer default.” Id. at show no has. 5(a), 269. The Fourth Cir- Fed.R.Civ.P. 10(c). cuit’s ruling counsels against If a making litigant civil attaches a docu- requirement dependent on the ba- ment to a pleading, it must provide that sis for the District Court’s ultimate resolu- document to the other party, even if he tion of the claim. might already have it. Nothing in the
Neither do we how our see Rules counsels holding against importing going require engage clear, State to consistent, this same and unwaver- “expensive” and “time-consuming and de- ing requirement to the habeas context. tailed task” of “searching for transcripts, reasons, For these acquiesce we cannot exhibits and other documents from state in the Concurrence’s proposal. The rele- stenographers, reporters, procedural rules, vant principles un- clerks,” Concurring Op. beyond derlying our system, adversarial what it and fun- already will done in preparing damental its fairness answer to the If rule we have the State has already adopted cited to or today. It is referenced a one that document should have in its it certainly already applied been Rodriguez’s case, Mr. found that process document one applied must be from here on. 5. The Circuit Fifth did also not seize on a reveals that disposed District Court Sixta, opportunity similar although unlike some claims merits others on Thompson, apparent was not from the Quarterman, grounds. v. Sixta Fifth description Circuit’s H-07-0118, case. But a No. 2007 WL at *3-8 review the (S.D.Tex. 2, 2007). decision Mr. Sixta’s Nov. *9 extensively re- merits and on the petition
III. testimony and quoted on and lied Appendix filed substance, the State’s In deciding to in appendix, the in exhibits documents up of several is made full the Without deny petition. the an- to the State’s or exhibits attachments par- meaningfully unable was to petitioner en- procedurally was Rodriguez Mr. swer. ticipate. Appendix in the the documents to titled filed in the answer referenced that are by Habe- established it is well Although District the Court Because the State. of Rules Civil that the Federal as Rule interpreting in erred judge magistrate the in construction may applied Procedure er- rules, this and because the rules, is not application this habeas against Mr. proceedings ror infected Rules mandatory. abuse of discretion it was Rodriguez, (“The Rules of Federal motion deny to his for the District they Procedure, extent to the Civil objections to his over for reconsideration statutory with inconsistent are not violations. See underlying procedural rules, applied may be these provisions Richardson, 1266; Brown, 415 F.3d rules.”). under these proceeding to a F.3d at 740. of view, proper construction my a de- District Court’s REVERSE We of require service Rule 5 would for recon- motion Rodriguez’s nial of Mr. unless a district answer to an REMANDED case is This sideration. orders, usually after so specifically court Mr. that the State serve with instructions petition jurisdiction, the it has determines documents the twelve Rodriguez with has exhausted petitioner timely, is procedurally he is to which Appendix remedies, of and a review the state court he be allowed entitled so that will fol- merits substantive answer. the State’s reply to amend his low. filed, the Dis- reply that amended After the merits of adjudicate should trict Court A. Case This corpus fully briefed juris- had case, court In this the district BAYLSON, concurring: Judge, timely peti- District diction, was state court reme- exhausted his had tioner result, I but decline I concur Judge Therefore, Magistrate dies. majority, par- ruling of the join the broad review of detailed to make obliged that, an answer is when ticularly requiring the state’s petition, allegations petition, all exhibits to a habeas record. and the factual response, answer, must in the items “referenced” on the always be served case, state law responding In this of its agency, part answer factu- enforcement majority that the I with the agree had filed the state petition, a reversal. requires case al record this appendix. detailed trial record should The district court appro- found it the district court Attorney provide Because General that the Florida to the contents rely on and cite priate its copy appendix of the ha- adjudication in its appendix This the correct result answer. merits, fundamental petition on beas appendix but because should requires district fairness filed with the had been the answer and copy have received district importantly, More court. time to allow in sufficient appendix to consider (correctly), court decided *10 review, argument and to statute, submit specific and/or Antiterrorism and evidence to the district court. Effective Death Penalty (“AEDPA”), Act by enacted Congress 28 USC The record petitioner shows had some Adjudication of federal habeas parts of the trial but there is no petitions from state court convictions is showing he had access to all the materials important to the administration of criminal appendix which the respondent justice, principles federalism, as well Magistrate Judge relied. Peti- as to petitioners prosecutors. and See compel tioner’s motion to service of the — generally Martinez v. Ryan, U.S. appendix should granted. have been Al- —, 1309, 1316, 182 132 S.Ct. L.Ed.2d 272 ternatively, petitioner’s motion for recon- (2012) (“Federal habeas courts reviewing sideration granted. should have been the constitutionality of a prisoner’s state denial of these motions an was abuse conviction and sentence guided by discretion in this case. designed to ensure that state-court After the of a filing Report Rec- and judgments are accorded the finality and ommendation petition denied, that his respect necessary to preserve integrity petitioner objections, which were legal proceedings within our system of by overruled the District Judge without federalism.”). The very limited review of opinion. Petitioner contends that access state court criminal convictions under Sec full appendix would have aided tion 2254 recently was by emphasized him in requesting leave to pe- amend the United Supreme States Court in Burt v. tition, reply file a brief making and/or - Titlow, -, U.S. 134 S.Ct. more objections detailed to the Report (2013). L.Ed.2d 348 and Recommendation. We do not have The consideration of a Section 2254 peti- determine that would have by (often tion a federal district court re- necessarily successful; been his lack of ferred Magistrate to a Judge for Report full appendix prejudicial. Recommendation) and is a step-by-step majority’s holding, broad requiring process: answer, service of an but also (1) The Clerk answer, record filed must serve a copy with the and items petition any answer, order on the respondent “referenced” every habe- appropriate state required is not officer under Habeas to decide this case. Further, Rule 4. Under Habeas “a respon- is a result not required under dent is not any rule or legal precedent. petition answer I further unless a judge so believe it is a orders.” precedent ignores bad reality of how habeas usually cases are Habeas Rule further states: managed district courts. If it appears plainly petition attached peti- B. Habeas Rules and 5 tioner is not entitled to relief in the The language and structure of the Habe- court, judge district must dismiss as Rules does not require the ruling broad and direct notify the clerk to by majority. If the is not Initially, separate rules dismissed, exist for habeas judge must order the re- they cases because unique are a type spondent motion, to file an civil litigation. disposition Their time, other response within a fixed or to governed by rule, common law but take judge may other action the order. his has exhausted whether, af- whether
Thus, the court determines not, the court If remedies. petition, reviewing ter *11 If the petition. the dismiss obliged to responding the required should be will timely, the dismissal not petition is the often agency, law enforcement state has petitioner If prejudice. with likely be district or local general attorney state remedies, the court state not exhausted attorney. prejudice without likely be will dismissal answer, then an (2) requires If the court court for to state can return petitioner so state law respondent the requires Rule 5 refile and then purposes, exhaustion the an- to to “attach agency enforcement the exceptions, With some court. federal re- transcript the of parts swer lack of for dismiss court will also district in- and must relevant” considers spondent ais petition the if it finds jurisdiction available, and transcripts dicate what 28 U.S.C. petition. successive” “second or yet not have proceedings what recorded 2244(b). appellate Prior state transcribed. been (4)If petition the court finds district the or- dispositive and briefs, opinions, court set of the reasons by any is barred the answer.1 filed with also be must ders must above, court then the district forth must 5(b) the state provides, As merits of the full examination undertake the answer, indicate whether also, in its petition. reasons such for barred claim is court allows district such for or reasons limitations of statute as when judge discretion remedies, proce- state to exhaust as failure itself, supply court the state or respondent, a second non-retroactivity, bars, or dural At this the record. of portions additional if the district Even or successive any portions answer and point, the be should an answer court determines with the respondent by the record habeas determine filed, may still be served should answer, subsequently, or or more on one must be dismissed petition court the district Once on so, court the district If grounds. of these petition of habeas review determines sub- any record likely not considered has fundamental appropriate, is on its merits likely but respondent, by the mitted shall petitioner requires that fairness petition contents of ruled, on the based inAs as filed. and record the answer opinions. court itself, relevant answer and without the ex- trial transcripts and trial The detailed partici- appropriately cannot relevant likely to be hibits are on adjudication of pate these any of consideration dismissal to amend merits, seeking to move by grounds. by brief as allowed file a petition, reply if objections 5(e), detailed file determines Rule (3) court then and/or The district adverse (1) recommendation report and steps (1) after step either after petitioner.2 timely and (2), the petition whether Requiring service civil rules. itself, the normal in non- majority Although is correct 1. answer, burdensome is not an cases, to exhibit "attached” civil However, major- prosecutors. state court served, along with the be pleading must item ity's opinion requires also fol- for not good reasons there are pleading, no there is pleading, in the "referenced” cases, until the lowing this rule in support this. requirement in the civil the state need to review court has district any service absence of court record. cases, petitioners penalty Except death exception to 5 allows an requirement in Rule ap- not entitled 2254 cases are Section (4), has, stage merits, Prior to court district the district so, court do thus likelihood, in all not reviewed in obviating the record detailed petition- review of the detail, but has er’s prelimi- made substantive claims. examination, nary most likely from the These legal principles result frequent itself, and the state dismissals Section 2254 petitions. If the (also opinions and briefs remedied, defect can be the dismissal will be filed with the answer the respon- prejudice. without dent), to determine whether the petition is If the district court determines that the timely has exhausted state petition deserves consideration on the *12 court remedies. merits, then, time, at the district importantly, 5(b), Most recognizes Rule court, by whatever means is appropriate, sequential the nature of habeas review (a order, court letter to the prosecutor, specifies when it respondent itself etc.) require should service on petition- the only need portions file of the record it er, and provide petitioner the with time to considers If respondent “relevant.” the review record, the answer and the and an believes that petitioner the is not entitled opportunity to either amend petition, the merits, to review on the rec- attached reply file a opposition brief in to the state’s may ord be limited that issue. Howev- (as response provided in Habeas Rule er, judge need not accept respon- 5(e)), objections or file if a magistrate dent’s relevant, determination of what is judge has a report issued and recommen- after full of petition review dation that the petition be denied. answer, and respondent order to file majority notes that 28 U.S.C. additional portions of the record at the § indigent entitles petitioners judge’s discretion. to secure documents from the clerk with- 5(e) Although Rule Habeas for provides cost, out is an insufficient solution to the brief, a reply may only be filed “within a disposition of this case. I agree Section time by judge.” fixed This language 2250 is not an efficient remedy, because confirms the step-by-step approach de- the clerk can only copy what has already tailed above acknowledges and the need been filed the district Magistrate court. judicial for individual management of each judges can more easily secure the particular rather than a broad as described in Habeas Rule and rule that will apply all cases. respondent a to serve it on However, language reason of for this is Section structure obvious. supports my In reviewing management view that petition, if it of ha- plainly ap- requires cases pears judicially-controlled from beas petition, with or without scheme provide an a petitioner with por- attached record prior of and/or tions of the proceedings, record when judge should be requires it to be furnished: dismissed because of legal principles re- lating jurisdiction, timeliness or ex- If on application for a of habeas writ haustion, without inquiry further into the corpus an permit- order has been made
pointment 8(c), of counsel unless the court decides necessary or “if for effective discov- appoint 2254(h). counsel. 28 U.S.C. ery.” Habeas petitioners Rule As most Criminal Act generally Justice funds are not se, proceeding pro petitioner therefore appointment available for of for counsel habe- does not rely have counsel on whom to cases, petitioners noncapital unless assistance. evidentiary court holds hearing, sometimes agency, state responding ap- prosecute
ting searching for of great deal of requiring the clerk pauperis, in forma plication other documents transcripts, shall States the United of any court reporters, stenographers, cost without state court to the furnish paper, In terms of volume of such documents clerks. copies certified trial, appeals in his office as direct file state lengthy the record parts of judge can proceedings, order post-conviction state application pending. proceedings, set whom in a multi-volume result before thousands or even encompassing hundreds added). (emphasis § 2250 28 U.S.C. of pages. on fed- leading commentaries One Habeas Cor- Federal practices, eral habeas imposed burden addition Procedure, discusses Practice pus is also this broad rule prosecutors, stages of the initial structure judicial on federal impose likely to burdens history on some After practices. corpus fully do Many petitioners officers. “After authors write: topic, the hur- the substantial understand filed, points there are several before “jump court must over” dles the *13 the whether may arise question which petition 2254 considering a Section (the peti- pleading dismiss court should receipt may view Petitioners merits. for tion) grounds summarily because state an answer with of lacking in mer- facially are asserted relief further opportunity record as an court Liebman, S. Randy Hertz & James it.” The merits of their advocate Pro- Practice and Corpus Federal increased may result this rule majority’s ed.2011). (6th trea- § 15.2[a] cedure do petitioners paper of volume —habeas detail, with in some discusses tise then is of filing electronic use —which footnotes, proce- some of supporting court deter- unless the until naught Although the steps noted above. dural appropriate. the merits is review on mines “necessarily contend that authors major- language mailed will I believe “answer” implies” every habe- (or attorney requires, if he ity’s opinion to his case, factual materials nothing about of one), says as service the treatise merely at “referenced” Id. attached or itself. record are service adverse unintended would have 16.1[b]. ruling may invite consequences. Majority’s Rule is Why the Reasons C. in this Circuit agencies enforcement law and Burdensome Problematic answers, any at- without very general file materi- or factual references tachments of an answer service Requiring serving them als, just to avoid filed, every in each and whenever record arguably Prosecutors ground- how matter no Section 5(c) gives discretion Rule right because the habeas less, untimely premature or is “rele- determine what prosecutor to be, expensive burden puts an naturally inclined to They will be Obviously, vant.” prosecutors. court on state “rele- view of what very narrow adopt abe provisions can compliance with these consequence The unintended by task vant.” and detailed very time-consuming relevant, respon- portions of the record respondent— gives As the Rule discretion responsi- professional must exercise attorney general a local dent usually the state’s Presumably, prosecutor. bility expected aof stage what to determine prosecutor this —at language necessary broader than to decide dent had moved for summary judgment. this case will likely make the state’s an- Id. After discussion prior Eleventh Cir- petitions swers to less much useful to dis- cuit reviewing cases the habeas judicial trict court officers. rules and decisions from Circuit, the Fifth this Court en banc rejected petitioner’s A useful booklet recently published by n arguments and concluded the following: Center, the Federal Judicial Section 225k Capital Habeas Cases: A Pocket Guide 56(c) for We find Rule notice inconsistent Judges, For specifically notes that 8(a) with a Habeas Rule disposition treatment cases is often framed parties when the do not raise issues by local practice ap- and culture: “The requiring a factual inquiry outside the proach utilized district court manage record and the district does not a first-time often revolves rely on material outside record in practice culture, around local well as disposing petition. Thus, we hold specific presented issues by an individu- ten-day notice requirement of Fox, al case.” Kristine M. Section 225k 56(c) Rule apply does not to such a Capital Habeas Cases: A Pocket Guide disposition pursuant to Habeas Rule (2012). Judges For Although this prac- [12]. tical publication is mostly devoted to man- Id. 973. I respectfully believe that the agement cases, of capital habeas the above holding of McBride against counsels quotation reflects the truism of how habe- broad, circuit-wide rule based on Habeas as eases are often managed. 5, making anof answer and However, I do believe that the ma- mandatory record in all cases. jority’s broad, rule, circuit-wide requiring There are at least two situations in *14 service of the and answer record each and which majority’s expansive, circuit- every they time are filed in the district wide interpretation of may be un- court, should be binding on all habeas necessary. within cases the Eleventh Circuit. where, The first by state or local Applicable D. and Law Practice Does practice, a defendant who has been con- Require Not Majority’s Broad victed of a provided crime is copy with a of Ruling the trial transcript and exhibits as a mat- ter of course. This occur We should also could after the take into account the itself, pursuant trial or holding any of of appeal McBride v. direct Sharpe, 25 F.3d (11th (en Cir.1994) banc), appellate courts, the state or through a considered state impact post-conviction of remedy procedure. Habeas Rule 8 in the context states, a In of motion for some a summary judgment, government local proto- col, provisions 56(c), a of rule of court practice Rule which at or local time ten day require counsel, notice to moving defense the prosecutor or party itself, if the Court was going to provide copy consider defendant with a evidence outside the record. of the trial Petitioner including exhibits. McBride contended that ten-day There notice been no provided has information requirement of 56 should Rule be this court on applied topic. Requiring this service in every habeas case in which respon- of the answer and in every record case prosecutor good if the portions believes in faith that support posi- of the record that its should dismissed be without tion. proceedings, further it will file those and will increase necessary, is not filed duplica- of unnecessary costs
may impose
prosecutors.
on local
expenses
burden
paper.
waste
tion and
out, the
points
majority
Although,
arise where
would
situation
The second
Greene, 427
Thompson v.
Circuit
Fourth
the full
agency files
state
responding
a
(4th Cir.2005),
a
adopted
263, 268
F.3d
matter of
as a
court
district
with
record
facts
Rule
reading of Habeas
broad
How-
2254 case.
every
Section
course
arbitrary
very
a
(or
revealed
Thompson
of
the court
contends
ever,
state
if the
not serv-
of
attorney general practice
concludes)
sponte
sua
there
when
a petitioner
ing exhibits
such as
grounds,
legal
be denied
should
Florida
five exhibits.
more than
exhaust,
were
and the
or failure
timeliness
such an
employ
not
Attorney General does
court
then the
agrees,
court
district
However,
in both
arbitrary practice.
presumably,
merits
not considered
case,
court
the district
and this
Thompson
If
record.
rely on the
not consult
did
denying
exhibits in
heavily on the
relied
has not considered
court
the district
Section
petitioner’s
all,
that it was filed
fact
the mere
record at
circumstances,
a
does
petitioner
irrelevant,
lack
such
of
court is
with the
un-
respond
ability
adequately
have the
not result in
does
on the
service
full access
has had
less
fairness.
of
fundamental breach
embarking
record;
judicial officer
trial
suggest
that since
respectfully
I also
rec-
of the trial
examination
on detailed
opportuni-
the first
apparently
this
case
peti-
adjudicating a Section
ord
scope
determine
court to
ty for this
peti-
require
merits should
on the
tion
broad,
rule is
circuit-wide
the record as
copy
tioner have
majority had limited
If the
necessary.
noted, many peti-
court. As
the district
district
holding to the facts
its
the court re-
before
dismissed
tions are
would rec-
this circuit
within
judges
court
the merits.
views
carefully deter-
obligation
ognize their
only report-
Moreover,
is the
Thompson,
need to
cases which
mine
those
based
making such
broad
ed decision
merits,
and then
on the
decided
Eleventh
5.4Prior
Habeas Rule
holding on
peti-
and record
district
and other
broad,
cases5
Circuit
circuit-wide
majority’s
tioner.
*15
as
Rule 5
to construe
declined
the an-
cases6 have
service
requiring
rule
automatic
majority has
here.
they
every
record
case
swer and
second
569,
(5th
proper to dismiss the
Thaler,
was
stance
572
615 F.3d
v.
4. Cf. Sixta
petition with-
petition as a barred
Cir.2010)
successive
court's rul-
(upholding the district
56(c)).
complying with Rule
response
out
did
ing
government's
because
exhibits,
agree-
dictum
but in
not include
McDonough, 804-CV-0989-T-
v.
6.Davis
requires attachments to be
ing
(M.D.Fla.
27TGW,
at
WL 3306772
*2
2007
filed).
when
served
6, 2007) (finding
petitioner was not
Nov.
1032,
because
copy
a
the exhibits
Linahan,
entitled to
F.2d
1034-35
697
v.
Hill
5,
2254
Section
Cir.1983) (“Hill
“Rule Rules
(11th
to notice
was entitled
of the ex-
9(a)
explicitly
does not
dismiss-
request for Rule
state's
hibit”);
Crosby, 8:06-CV-163-
Norris v.
summary
for
as a motion
be treated
al would
(M.D.Fla.
T27TBM,
at
WL 128822
*1
2007
offer evi-
opportunity to
judgment and an
(“Petitioner's
2007)
12,
motion.”);
reliance
Jan.
Allen v.
opposition to the
dence
Thompson
sup-
Cir.1986) (find-
opinion in
Newsome,
(11th
Fourth Circuit’s
934
F.2d
unpersuasive. As
argument is
port of his
judicial
take
notice
could
ing
district court
5,
noted,
Govern-
Rule Rules
Thompson court
petition
because
first
(2006),
ex-
does
contents,
ing
2254 Cases
Section
that circum-
and in
of its
aware
In commenting
concurrence,
on this
an interpretation of the Habeas Rules
majority cites two Supreme
cases,
which envision post-answer
expansion of
both of which strongly support my ap
the record when needed.
proach.
Day
v. McDonough, 547 U.S.
Because the varying
opinions
198, 210,
1675,
126 S.Ct.
the Habeas Rules afford to district courts “to tailor the proceedings to dispose quick
ly, efficiently, fairly of first habeas
petitions that lack merit, substantial while
preserving more extensive proceedings for
those petitions raising questions.” serious 325,116
Id. at S.Ct. 1293.
Thus, contrary majority’s concern
that this multi-step process would burden courts,
district
Day and
support
Lonchar
plicitly require
exhibits.”);
service of the
Tay-
pursued
and has not
discovery
provided
McNeil, 8:08-CV-774-T-3OMAP,
lor v.
rules.”);
Martel,
under
Foss v.
2:09-
*16
(M.D.Fla.
WL
2008)
at *1
CV-3551-JAM-JFM,
Dec.