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Wilson v. Frakes

United States District Court, D. Nebraska

September 25, 2018

TIMOTHY W. WILSON, Petitioner,
v.
SCOTT R. FRAKES, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on Petitioner Timothy W. Wilson's Motion to Stay (filing no. 21) and Motion to Expand the Record (filing no. 22).

         I. MOTION TO STAY

         Petitioner asks the court to stay these proceedings “until such time [as] this court expands the record, holds an ev[i]dentiary hearing in l[ie]u of a records hearing or makes a ruling on the requested Expansion of the record.” (Filing No. 21.) “Upon Expansion of the Record, ” Petitioner requests for “a continuance of no less than 90 days to perfect his response.” (Id.) As Respondent notes in his response to Petitioner's motion (filing no. 23), “Wilson is not asking for a traditional stay of the habeas proceedings, but instead is simply asking for an extension of time to file his brief after this Court rules on his Motion to Expand the Record (filing no. 22).” Respondent does not object to Petitioner receiving an extension of his brief due date. Accordingly, the court will grant Petitioner's request for an extension of time, and Petitioner shall have 90 days from the date of this order to file his brief in response to Respondent's Answer (filing no. 19) and Brief in Support of Answer (filing no. 20).

         II. MOTION TO EXPAND THE RECORD

         In his Motion to Expand the Record, Petitioner asks the court to expand the record to include ninety-seven documents. Respondent has filed a Brief in Opposition to Petitioner's motion. (Filing No. 24.)

         A. Background

         A brief recitation of the background of this case, as set forth in Respondent's brief (filing no. 24), is helpful. Petitioner pled guilty to two counts of first degree sexual assault on a minor and one count of creating or generating sexually explicit visual depiction, being more than 19 years of age. He was subsequently sentenced to a total of 60 to 90 years in prison. The state district court's judgment was affirmed on direct appeal, with the only claim raised being excessive sentence.

         Following his direct appeal, Petitioner filed a motion for postconviction relief, which included various claims of ineffective assistance of counsel and trial court error. The motion was dismissed by the state district court without an evidentiary hearing, and the lower court's judgment was again affirmed on appeal. This habeas petition followed.

         On May 5, 2018, Respondent filed the Designation of State Court Records in Support of his Answer. (Filing No. 11.) Respondent attached to the Designation all state court records for this case, which included the state district court records that had been filed in the state appellate courts-the transcripts of filings and the bill of exceptions for Petitioner's plea, sentencing, and postconviction proceedings. (See Filing Nos. 11-9 through 11-12.) Respondent states that the transcripts and bill of exceptions already filed in this case are the entire record that was before the state appellate courts. Respondent further avers that he is not in possession of any other transcripts of filings or hearings that have not already been filed with this Court. (See Filing No. 19 at CM/ECF p. 2, Answer at ¶ 9.) Also attached to the Designation were the docket sheets of the state appellate courts for Petitioner's direct appeal and postconviction appeal, as well as all the briefs filed by Petitioner and the State in those appeals. (See Filing Nos. 11-1 through 11-8.)

         Petitioner filed the present Motion to Expand the Record on August 27, 2018. (Filing No. 22.) Petitioner previously sought to expand the record to include ninety-five of the same documents he now requests to add, and this court denied his request as premature since Respondent had not yet filed an answer and brief. (See Filing Nos. 13 and 15.)

         B. Discussion

         Petitioner's Motion to Expand the Record is governed by Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 7 permits the court to direct the parties to expand the record by submitting additional materials relating to the petition. However, this power is permissive and granted or denied at the court's discretion.

         Here, the majority of the ninety-seven documents listed in Petitioner's motion are already filed with the court, namely requested document numbers 3-6, 12-16, 18-24, 28-43, 45-48, 50-51, 53-63, 65-80, 82, 84-85, 88-92, and 97. The ...


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