Opinion
Civil Action No. 02-1154(JBS)
May 16, 2003
Richard Coughlin, Camden, Julie A. McGrain, Esquire, Camden, New Jersey, for petitioner
Peter C. Harvey, Linda K. Danielson, Trenton, New Jersey, for Respondents
OPINION
Presently before the Court is the motion of respondents seeking a stay pending appeal of this Court's February 25, 2003 Order requiring them to serve upon this habeas petitioner the twenty-eight exhibits that they attached to their answer. Respondents filed the exhibits with this Court, but refuse to serve them on petitioner, maintaining that the petitioner is responsible for getting the documents himself either from his own files, from the files of his attorney, or from the Court. This Court disagreed with respondents on June 10, 2002, and on February 25, 2003 after reconsideration, and ordered respondents to serve petitioner with the exhibits. Respondents ask the Court to stay this order pending their appeal of this issue before the United States Court of Appeals for the Third Circuit. The Court has considered the arguments of the parties and, for the following reasons, finds that respondents have not shown that a stay is warranted here and will order service of the documents on or before June 6, 2003.
I. BACKGROUND
Jeffrey Todd Pindale is a prisoner confined at South Woods State Prison who filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) with this Court on March 15, 2002. In his petition, he challenges a judgment of conviction entered in the Superior Court of New Jersey, Cumberland County, for three counts of aggravated manslaughter and two counts of fourth degree assault by auto.
The underlying convictions stem from a March 5, 1988 automobile accident in which three people died and three were injured, including petitioner. Petitioner was charged with driving the car that caused the accident, and was convicted after a jury trial in Cumberland County, New Jersey, on three counts of first degree aggravated manslaughter and two counts of fourth degree assault by automobile. He appealed the convictions and the sentence, and on February 28, 1991, the New Jersey Appellate Division affirmed the convictions, but reversed the sentences for the charges of assault by automobile, and reversed the convictions and sentences on the first degree aggravated manslaughter charges. The New Jersey Supreme Court denied certiorari.
Petitioner was retried and, on January 13, 1992, the jury found him guilty of three counts of aggravated manslaughter. He was sentenced for all charges on February 28, 1992. Petitioner appealed and, on February 1, 1995, the New Jersey Appellate Division affirmed the convictions, but vacated the sentences because they exceeded the sentences imposed after his first trial. Plaintiff was resentenced on March 16, 1995 to three consecutive 20-year terms, with a 10-year period of ineligibility for parole for each of the three aggravated manslaughter convictions. The New Jersey Supreme Court denied certiorari.
Petitioner filed an application for post-conviction relief on July 11, 1997. The trial court denied the motion on September 15, 1997; the Appellate Division affirmed the denial on January 21, 2000; the New Jersey Supreme Court denied certiorari on April 3, 2001. Petitioner then filed his petition for a writ of habeas corpus with this Court on March 15, 2002.
On April 8, 2002, after a review of petitioner's habeas petition and assurances from petitioner that he wanted the Court to consider the petition "as is," the Court ordered respondents to file an answer that included responses to petitioner's allegations, a statement of petitioner's exhaustion of state remedies, and "certified copies of all indictments and/or charges, transcripts, trial, and appellate briefs, appendices, opinions, notices of appeal, petitioners for certification, and applications for post-conviction relief filed in State trial and appellate proceedings." [Docket Item 5-1.]
The Court issued a March 28, 2002 order in compliance with Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), to notify petitioner of the consequences of filing a § 2254 petition under the Antiterrorism and Effective Death Penalty Act and to provide him with an opportunity to withdraw the petition and file one all-inclusive § 2254 petition. [Docket Item 3-1.] Petitioner responded on April 4, 2002, notifying the Court of his intention to have his petition ruled on "as is." [Docket Item 4-1.]
Respondents filed their answer on May 29, 2002, [Docket Item 6-1], including twenty-eight exhibits, which they referenced throughout their twenty-eight page answer as support for their argument that the petition should be dismissed. (5/23/02 Letter to Clerk of Court.) Respondents did not attach the exhibits to the answer that they sent to petitioner, arguing that they cannot be required to do so.
The attached exhibits include:
1. Petitioner's brief and appendix to Superior Court, Appellate Division on direct appeal;
2. State's responding brief and appendix;
3. Opinion, Superior Court of New Jersey, Appellate Division, February 1, 1995, affirming petitioner's convictions and remanding for resentencing;
4. Petitioner's petition for certification;
5. State's response to above;
6. Order, Supreme Court of New Jersey, filed June 7, 1995, denying petition for certification;
7. Petitioner's brief and appendix to the Superior Court of New Jersey, Appellate Division, on appeal from the denial of post-conviction relief;
8. State's responding brief;
9. Opinion, Superior Court of New Jersey, Appellate Division, January 21, 2000, affirming the denial of post-conviction relief;
10. Petitioner's petition for certification;
11. State's response to above;
12. Order, Supreme Court of New Jersey, April 3, 2001, denying certification;
13. Trial transcript, January 6, 1992;
14. Trial transcript, January 7, 1992;
15. Trial transcript, January 8, 1992;
16. Trial transcript, January 10, 1992;
17. Trial transcript, January 13, 1992;
18. Sentencing transcript, February 28, 1992;
19. Motion transcript, March 12, 1993;
20. Re-sentencing transcript, March 16, 1995;
21. Post-conviction relief transcript, July 11, 1997;
22. Post-conviction relief transcript, July 25, 1997;
23. Transcript, sentencing appeal, February 7, 1996;
24. Order, Superior Court, Appellate Division, February 7, 1996, affirming petitioner's sentence;
25. Petitioner's petition for certification;
26. State's response to above;
27. Order, Supreme Court of New Jersey, denying certification, November 19, 1996;
28. Promis/Gavel Motions print-out.
(5/23/02 Letter to Clerk of Court.)
On May 30, 2002, petitioner sent a letter to New Jersey Deputy Attorney General (DAG) Linda K. Danielson requesting a copy of the exhibits referenced in the answer and filed with the Court. DAG Danielson replied to petitioner on June 4, 2002:
Other than to provide you with a copy (attached) of the Promis-Gavel docketing sheet, which is R28, we are not in a position to comply with your request.
The Honorable Jerome B. Simandle, U.S.D.J., ordered only that the respondents file a copy of the pertinent state court record with the federal court; there is nothing in the court order mandating that we provide a copy of the record to you. Indeed, you should already have a copy of all the documents comprising R1 to R27 and, if you do not, you should contact the attorneys who represented you in the state courts for assistance.
(6/4/02 Letter to Petitioner) (emphasis in original).
The Court received a copy of DAG Danielson's letter and entered an order on June 10, 2002 requiring respondents to "serve on Petitioner a copy of the state court record and proceedings which were attached to the Answer filed with the Clerk" by June 26, 2002. [Docket Item 14-1.] The Court found that service was required by the April 10, 2002 order and by Rule 5(a), Fed.R.Civ.P., applicable to the case through Rule 11 of the Rules Governing § 2254 Cases in the United States District Courts. (Id.).
On June 20, 2002, respondents filed an "emergent motion" for reconsideration of the June 10, 2002 Order and for a stay pending the Court's resolution of the reconsideration motion. [Docket Item 19-1.] The Court granted the motion to stay on June 24, 2002 pending disposition of the reconsideration motion. [Docket Item 21-1.] The Court filed its Opinion and Order on February 25, 2003, "again find[ing] that Respondents must serve Petitioner with copies of the record documents that were attached to the Answer and filed with the Clerk." [Docket Items 27-1, 28-1.] Respondents were ordered to serve petitioner with the documents on or before March 17, 2003. (Id.,)
On March 14, 2003, Respondents filed the present motion for a stay of the February 25, 2003 order pending appeal. [Docket Item 29-1.] The Court temporarily suspended the March 17th deadline pending adjudication of this motion. [Docket Item 30-1.] Respondents filed their notice of appeal on March 27, 2003. [Docket Item 36-1.] The appeal is presently before the Third Circuit, docketed as USCA Number 03-1914. [Docket Item 37-1.]
II. DISCUSSION
When deciding whether to stay its judgment pending appeal, the Court must weigh four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Republic of Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 658 (3d Cir. 1991).
Here, respondents argue that a stay should be granted because (1) they will likely succeed before the appellate court because 28 U.S.C. § 2250 anticipates that the habeas petitioner must obtain his own copies of relevant documents; (2) they will be irreparably harmed if a stay is not granted because, if they produce the documents now, their appeal based on production of the documents will become moot and they will have lost their opportunity to appeal; (3) petitioner will not be substantially injured by a delay in receiving the documents because he "could simply forego the filing of a reply or file the reply using the documents he has;" and (4) the public interest favors a stay because a stay will allow the state to forgo "expend[ing] already scarce resources" by copying documents for habeas petitioners.
A. Likelihood of Success on the Merits
On this motion for stay pending appeal, respondents, as the moving party, must show that they are likely to succeed on the merits of their appeal before the Third Circuit. Hilton, 481 U.S. at 776. To meet this standard, "common sense dictates that [respondents] need not persuade the court that it is likely to be reversed on appeal." Canterbury Liquors Pantry v. Sullivan, 999 F. Supp. 144, 150 (D. Mass. 1998). Instead, respondents need to show that there are serious questions about the merits of this Court's decision and that equity favors granting the stay. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (citingProvidence Journal Co. v. F.B.I, 595 F.2d 889, 890 (1st Cir. 1979)).
For respondents to demonstrate a likelihood of success on the merits here, they need to show that the Third Circuit will likely find (1) that it has jurisdiction over their appeal of this Court's non-final February 25, 2003 order, and (2) that this Court erred in requiring respondents to serve its exhibits on petitioner in its February 25, 2003 Order.
The Court raised the issue of likelihood of success in establishing appellate jurisdiction sua sponte in an Order dated March 17, 2003, stating:
To enable this Court, in connection with the motion for stay pending appeal, to assess the prospect of a meritorious interlocutory appeal from the Order of February 25, 2003, is it clear that there is a meritorious basis for appellate jurisdiction from this non-final order?
[Docket Item 30-1.] The parties were then given an opportunity to address the issue.
(1) Appealability of February 25, 2003 order
Respondents argue that the Third Circuit will find that it has proper appellate jurisdiction over an appeal of this Court's February 25, 2003 Order under either (a) the collateral order doctrine of 28 U.S.C. § 1291, or (b) the interlocutory appeal provisions of 28 U.S.C. § 1292.
(a) Collateral order doctrine
Respondents first argue that the Third Circuit will likely find jurisdiction over its appeal of this Court's February 25, 2003 order under the collateral order doctrine announced in Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541 (1949). The appellate court generally only has jurisdiction to consider final judgments of the district court. 28 U.S.C. § 1291. However, the collateral order doctrine excepts from the general rule a narrow range of interlocutory orders which:
28 U.S.C. § 1291 provides in part:
The court of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where direct review may be had in the Supreme Court.
(emphasis added).
(1) conclusively determine the disputed question;
(2) resolve an important issue completely separable from the merits of the action; and
(3) are effectively unreviewable on appeal from a final judgment.Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000). If the order "fails to satisfy any one of these requirements, it is not appealable under the collateral-order doctrine." Rolo v. Gen'l Devel. Corp., 949 F.2d 695, 700 (3d Cir. 1991) (citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988)). The doctrine must be "construed narrowly . . . lest the exception swallow up the salutary general rule that only final orders may be appealed." Rolo, 949 F.2d at 700 (quoting Praxis Props., Inc. v. Colonial Sav. Bank, 947 F.2d 49, 54 (3d Cir. 1991)).
Respondents argue that this Court's February 25th order is an appealable collateral order because (1) it conclusively determined the issue by "establishing with finality that respondents are required to provide a copy of the state court record to petitioner," (2) it resolved an important collateral issue because document production is "conceptually separate from the merits of the habeas action," and (3) it is a decision that is effectively unreviewable on appeal from a final judgment because if the habeas petition is denied, respondents will not be able to appeal this issue. (Resp't Br. at 2-4.)
Respondents, however, do not have a substantial likelihood of success with this argument. Here, the respondents have been ordered to supply petitioner with discovery of the documents underlying their answer (and indeed attached to it). The Third Circuit has consistently construed the collateral order doctrine narrowly so that it "does not reach appeals of discovery orders 'beyond the narrow categories of trade secrets and traditionally recognized privileges, such as attorney-client and work product.'" Powell v. Ridge, 247 F.3d 520, 524 (3d Cir. 2001) (quotingBacher v. Allstate Ins. Co., 211 F.3d 52, 57 (3d Cir. 2000)). In cases with confidential information, the issue is "important" under the second prong of the test because there is "no way, absent immediate appeal of the order requiring disclosure, to 'unscramble the egg scrambled by the disclosure.'" Powell, 247 F.3d at 524 (quoting In re Ford Motor Co., 110 F.3d 954, 963 (3d Cir. 1997)). However, for other discovery orders, allowing an immediate appeal would "undermine the independence of the district judge" by undercutting "the primacy of the district court as the arbiter of the proceedings before it," Firestone Tire Rubber Co. v. Risjord, 449 U.S. 368, 274 (1981), would "disrupt and delay district court proceedings," and would "clog the courts of appeals with matters more properly managed by trial courts familiar with the parties and their controversy," MDK, Inc. v. Mike's Train House, Inc., 7 F.3d 116, 119 (4th Cir. 1994). The Third Circuit, therefore, decided to "draw the line" and dismissed an appeal when the discovery sought was "highly sensitive," but was not privileged. Bacher, 211 F.3d at 55.
Here, the discovery issue relates to document production, but respondents have never claimed that the documents include confidential or privileged information. Instead, respondents have consistently maintained that petitioner "in all probability already has or should have the documents," and admit that the documents are currently in the public record as they have been filed with this Court. (Resp't Br. at 3.) It is difficult to imagine that the Third Circuit, which "drew the line" and did not permit an appeal under the collateral order doctrine even though the documents sought were "highly sensitive," would nevertheless allow an appeal here where the documents are public record. Should this Court have erred in requiring service, no "egg" will be "scrambled" by the disclosure in a way that cannot be later "unscrambled" because all of the material is already available to the public. The concern that the interlocutory appeal of an order for document production will cause unwarranted delay in reaching the merits is especially significant here, as the adjudication of Pindale's section 2254 claims has already been delayed for a year due to the state's refusals. Any damages here (i.e., the costs of copying) could be compensated after a final appeal. Therefore, respondents do not have a substantial likelihood of success on their argument that the Third Circuit has jurisdiction under the collateral order doctrine.
Respondents also argue that the third prong of the test is satisfied here because this order is unreviewable on appeal from a final judgment since the "petition will undoubtedly be denied" leaving respondents with nothing to appeal. (Resp. Br. at 6.) The United States Supreme Court, however, has found that pre-trial discovery orders are reviewable on final appeal under the "rationale . . . that in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling." Firestone, 449 U.S. at 377 (citing Cobbledick v. United States, 309 U.S. 323, 327 (1940)).
(b) Interlocutory order
Respondents argue that the Third Circuit likely will find appellate jurisdiction over this Court's February 25, 2003 Order pursuant to 28 U.S.C. § 1292(b) which provides jurisdiction over a limited class of interlocutory orders.
The district court has discretion pursuant to section 1292(b) to certify interlocutory orders for appeal to the United States Court of Appeals, but only if "exceptional circumstances" justify a departure from the general finality requirement of appellate review. 28 U.S.C. § 1292(b); see also Coopers Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457 (1978); Hulmes v. Honda Motor Co., Ltd, 936 F. Supp. 195, 208 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir. 1998)); Carducci v. Aetna U.S. Healthcare, 2002 WL 31262100 (D.N.J. Jul. 24, 2002). To show that such "exceptional circumstances" justify certification, the moving party bears the burden of showing:
28 U.S.C. § 1292(b) provides, in part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . .
(1) that the order at issue involves a controlling issue of law, which if erroneously decided, would result in reversible error on final appeal;
(2) that there is substantial ground for difference of opinion about the resolution of the issue; and
(3) that an immediate appeal will materially advance the ultimate termination of litigation.Katz v. Carte Blanche Corp., 496 F.2d 747, 754-55 (3d Cir. 1984).
The Third Circuit will not likely find appellate jurisdiction pursuant to section 1292(b) though, because this Court will not provide the necessary certification of the appeal. The appellate court cannot hear an appeal of under section 1292(b) unless the district court, in a written order, certifies the order for interlocutory appeal. See Lusardi v. Lechner, 855 F.2d 1062, 1068 (3d Cir. 1988); Ford Motor Credit Co. v. S.E. Barnhart Sons, Inc., 664 F.2d 377, 380 (3d Cir. 1981).
Respondents have not filed a motion to certify the February 25, 2003 order for appeal, but they have argued in their present papers that "the requirements of 28 U.S.C. § 1292(b) are satisfied" and that "this Court could amend its February 25, 2003 order to express its opinion that there is a 'substantial ground for difference of opinion' and that an immediate appeal may advance the ultimate termination of the litigation." (Resp. Ltr. Br. at 5-6.) Petitioner was given the opportunity to address the certification issue. The Court will thus view the present motion as a motion for certification of an interlocutory appeal pursuant to section 1292(b).
The Court will not certify the order for interlocutory appeal because respondents have not shown any way that this Court's order requiring production of documents involves a controlling issue of law that, if erroneously decided, would result in reversible error on final appeal, that there is a substantial ground for difference of opinion about this Court's ruling, or that an immediate appeal would in any way materially advance the ultimate termination of litigation. The only possible injury to respondents here is financial; certainly an erroneous requirement that respondents expend $278.75 to serve petitioner with copies would not lead to reversible error for respondents when they have not disputed that petitioner has a right to the documents which are at issue. Appealing this financial issue now will delay, not advance, the ultimate termination of this case as this Court waits for the Third Circuit to decide who should pay for petitioner to receive the documents pertinent to his case.
See section II(A)(2), infra. For the reasons expressed there, respondents have failed to show a substantial ground for difference of opinion on the document production issue.
Therefore, this Court finds that respondents are not likely to succeed in their argument before the Third Circuit that it has proper appellate jurisdiction.
(2) Document production
Even if respondents were able to succeed on the appellate jurisdictional issue, they are not likely to succeed on their appeal of the February 25, 2003 order because they have not shown that there are serious questions about the merits of this Court's order requiring service.
Respondents base their position on 28 U.S.C. § 2250 which provides:
If on any application for a writ of habeas corpus an order has been made permitting the petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office as may be required by order of the judge before whom the application is pending.
Respondents acknowledge that petitioner is not proceeding in forma pauperis, but they argue that this section:
contemplates that a habeas petitioner can certainly obtain a copy of filed documents from the clerk of court by paying the requisite fees, currently $.50 per page, but if a petitioner is proceeding in forma pauperis he or she can still obtain the documents without charge so long as he or she applies to the judge and makes a showing of need for the documents. It is for the clerk of court to provide documents on file, whether for a fee or without charge, not the respondents to a habeas petition.
(Resp. Br. at 3-4.)
This Court previously disagreed with this argument in its February 25, 2003 Opinion, based on the interplay of the Rules Governing Section 2254 Habeas Cases in the United States District Courts (Habeas Rules), the Federal Rules of Civil Procedure (Fed.R.Civ.P.), and the Local Civil Rules of the District of New Jersey (Local Civil Rules). The rules all support a finding that, in this case, respondents need to provide petitioner with copies of the exhibits that they attached to their answer.
Habeas Rule 5 has been interpreted to "necessarily impl[y]" service of the answer, including "the attached portions of the record" on the petitioner. See Pindale v. Nunn, — F. Supp.2d — 2003 WL 735555 (D.N.J. Feb. 25, 2003) (quoting 1 Randy Hertz James S. Liebman,Federal Habeas Corpus Practice and Procedure § 19.2 (4th ed. 2001)). Rules 5(a) and 12(a), Fed.R.Civ.P., which apply to this case pursuant to Habeas Rule 11, also require all court filings in a case subsequent to the original complaint — including the answer and "every paper relating to discovery required to be served upon a party unless the court otherwise orders" — to be served on every party to the action, other than those in default. Local Civil Rule 81.2(d), which applies to this case pursuant to Rule 83, Fed.R.Civ.P., requires the respondent in a habeas case to file "a certified copy of all briefs, appendices, opinions, process, pleadings, transcripts and orders filed in the underlying criminal proceeding or such of these as may be material to the questions presented by the petition or motion."
Moreover, Habeas Rule 4 provides the district judge authority to "order the respondent to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate." Here, the district judge has deemed it appropriate that the respondents file and serve an answer, including its exhibits, on petitioner.
Together, these rules explain this Court's finding that a respondent in a habeas case is required by Local Rule 81.2(d) to file a copy of relevant documents from the underlying state criminal proceeding with the court and is required by Fed.R.Civ.P. 5(a) to serve all papers filed with the court on all parties to the action not in default, so is therefore required by Habeas Rule 5 to serve the answer, and the attached exhibits that were filed with the court, on the petitioner. While 28 U.S.C. § 2250 gives the court authority to order the clerk of court to provide transcript copies to petitioners proceeding in forma pauperis, it is not relevant to this case because petitioner is not proceeding in forma pauperis, and, to the extent that it is inconsistent with these procedural rules, it does not effect this case because 28 U.S.C. § 2072 provides that "all laws in conflict with [the Federal Rules of Civil Procedure] shall be of no further force or effect after such rules have taken effect."
Respondents here have not shown that this Court's analysis of the procedural rules in the February 25, 2003 opinion is subject to serious debate. Their cited cases do not establish that a habeas respondent does not need to serve his adversary with all court filings; instead, they establish that under section 2250, an in forma Pauperis petitioner may request a copy of the transcript of his criminal proceeding from the court. Then, the in forma pauperis petitioner may obtain the entire transcript of his underlying criminal proceeding if he shows he has need for it; he cannot simply ask for the entire transcript to be provided "for the purpose of combing it in the hopes that something might turn up." See, e.g, Stephens v. Scully, Civ. No. 86-4307, 1987 WL 10829 (E.D.N.Y. Apr. 29, 1987) (citing United States v. MacCollom, 426 U.S. 317 (1976)). The situation here is different; there is no in forma pauperis petitioner here who hopes to find evidence relevant to his claim. Instead, there is a petitioner who seeks service of court documents filed by his adversary with the court. The respondents' legal argument is not even fairly debatable, given the applicable rules and precedents. By referencing the documents, respondents have shown that they are relevant to petitioner's claims. Respondents have failed to show why the petitioner in a habeas case should be deprived of the service accorded to parties in civil cases.
See Williams v. Delaware, 427 F. Supp. 72, (D. Del. 1977) (denying request for transcript when petitioner had hired counsel); Irby v. Swenson, 361 F. Supp. 167 (E.D. Mo. 1973) (furnishing in forma pauperis petitioner copy of transcripts under 2250 because they included information pertinent to petitioner's claims); see also Barton v. Walker, Civ. No. 99-12016, 2001 WL 262692 (S.D.N.Y. Mar. 15, 2001) (providing transcripts to petitioner under 2250); Tyson v. Keane, Civ. No. 96-8044, 1997 WL 189125 (S.D.N.Y. Apr. 18, 1997) (dismissing transcript request because petitioner had not filed for in forma pauperis status).
This Court thus finds that respondents have not shown that they are likely to succeed on their argument that 28 U.S.C. § 2250 relieves them of the responsibility of serving their adversary in this civil proceeding.
B. Irreparable Injury to Respondents Absent a Stay
Respondents argue that they will suffer irreparable injury if this Court does not stay its February 25, 2003 Order pending appeal because "[i]f respondents are required to reproduce and serve the documents on petitioner, at considerable time and expense, then respondents will have forever lost their opportunity to have the issue resolved by the Court of Appeals [because the issue] by then would be moot."
This argument, however, is foreclosed by Third Circuit law which discourages interlocutory appeals of discovery orders and provides an avenue for appeal of such orders "in the rare case when appeal after final judgment will not cure an erroneous discovery order." Firestone, 449 U.S. at 377 (citing Cobbledick, 309 U.S. at 327); see also In re Flat Glass Antitrust Litig, 288 F.3d 83, 88 (3d Cir. 2002). While recognizing that discovery orders "may be effectively unreviewable after disposition of the underlying case," the Third Circuit and the United States Supreme Court have "unswervingly adhered" to the principle that a party may still appeal the discovery order if it is willing to resist the order and subject itself to a citation for contempt. Flat Glass, 288 F.3d at 88 (citing Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999)). While "the contempt route is a difficult path to appellate review, and one that may carry with it a significant penalty for failure," the party still has the ability to appeal the order. ID., at 89 (quoting MDK, Inc., 27 F.3d at 121).
Moreover, the New Jersey Attorney General's Office claims that the cost of making this set of exhibits for petitioner is $278.75, and that this expense can be saved if the State succeeds in this interlocutory appeal from the discovery order. This is not a suitable basis for granting this stay pending appeal. First, the copying costs calculated by the State are not based on its actual internal cost, but on the regulatory copy rate charged to the public for "Non-State Agency Fees." (See Ex. A to Letter of DAG Danielson dated Mar. 20, 2003.) The exhibits comprise 985 pages, and the respondents were unquestionably duty-bound to furnish one complete copy to the Clerk of Court filed as an attachment to their Answer, which they did. To make a second set of the very same copies, the State proposes to charge 75 cents for each of the first 10 pages, 50 cents for each of the second 10 pages, and 25 cents for each of the remaining 965 pages, together with 2 1/2 hours of labor charge. The differential cost to the State from making two sets of copies rather than one is nowhere near this amount. If, for example, the actual per copy cost is 5 cents for each page, it is seen that providing the Section 2254 petitioner with a copy of the exhibits he lacks is less than 50 dollars. Expenditure of 50 dollars pending appeal, to assure that this case can finally move forward in this petitioner's one and only section 2254 opportunity, will not be an irreparable injury to the State, even if it prevails on appeal.
Respondents, therefore, will not suffer irreparable harm without a stay based on the argument that it will deny them of their right to appeal this Court's order because the Third Circuit has found that an appeal is possible under these circumstances. C. Substantial Injury to Petitioner With Stay
This Court also notes that respondents will not suffer irreparable harm by disclosing the documents because they do not include confidential or privileged information and because the copying fee is compensable by petitioner in the event that this Court's ruling was erroneous.
Respondents argue that petitioner will not be injured if this Court stays application of its February 25, 2003 order because "he has already delayed consideration of his habeas petition" and if he "does not want to delay any further, he could simply forego the filing of a reply or file the reply using the documents he has." (Resp. Br. at 6.)
Respondents, in their argument on this factor, assume that even if a stay delays this Court's determination of petitioner's habeas claim, he does not have a viable claim, so the delay will not injure petitioner; they explicitly state that the "petition will undoubtedly be denied." (Resp. Br. at 6; see also Resp. Ltr. Br. at 4 (stating "the habeas petition will be denied")). Respondents have taken the position that petitioner's claim is time-barred; this Court is doubtful that respondents are correct. This Court, however, refrains from deciding the merits of petitioner's claims at this time since he has not yet had the opportunity to respond to respondent's answer. However, this Court also refuses to assume that his habeas petition will be denied. Section 2254 gives the petitioner the right to one full, final opportunity to seek relief from his state conviction. This is a right that will be delayed if this Court grants a stay or requires petitioner to proceed without the benefit of rebutting respondents' arguments. Delaying consideration of petitioner's claim while this matter is on appeal, thus, will impede petitioner's exercise of his habeas rights and could potentially injure him substantially by subjecting him to a lengthened period of incarceration should the Court eventually determine that his request for relief in his habeas petition is valid.
On initial review of the documents that respondents attached to their Answer, it appears that Mr. Pindale's petition is timely. His conviction became final under 28 U.S.C. § 2244(d)(1)(A) on February 17, 1997, ninety days after the New Jersey Supreme Court denied his petition for certification on November 19, 1996. (See Attachment R27.) The first day for calculating the 365-day statute of limitations period, therefore, would be February 18, 1997.
The statute of limitations was then tolled when petitioner filed his motion for post-conviction relief. He likely did so on February 19, 1997. A copy of the motion shows his signature and the February 19th date, but does not have a filed stamp indicating the date the document was filed. (See Attachment R7.) While the State points to a computer print-out that indicates a motion was filed on April 24, 1997, the record also includes the State's brief, filed when the post-conviction relief motion was on appeal, which states that petitioner filed a petition for post-conviction relief in February 1997. (See Attachments R8, R28.) Therefore, using the mailbox rule applicable to inmates, the filing date would be considered the February 19, 1997 date that petitioner gave his motion to prison officials for mailing. Therefore, the statute of limitations ran for one day, from February 18, 1997 to February 19, 1997, and then was tolled during consideration of petitioner's motion for post-conviction relief.
The New Jersey Supreme Court denied certification of petitioner's appeal of his post-conviction relief motion on April 3, 2001. At that time, the statute of limitations began again to run. Because one day was already used, petitioner had 364 days, or until April 2, 2002, to file a timely section 2254 petition with this Court. The Clerk of Court received his petition on March 15, 2002.
D. Public Interest
Respondents also argue that a stay should be granted because it is in the public interest to spare respondents from expending "already scarce resources" to copy and serve the documents. However, this financial interest diminishes when weighed against the public's liberty interest in ensuring that no person is subjected to an unconstitutional detention.See Gailes v. Yeager, 324 F.2d 630, 631-32 (3d Cir. 1963) (stating that purpose of a writ of habeas corpus is to ensure the legality of a present confinement). Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the habeas petitioner is provided one opportunity to argue that his detention is "in violation of the Constitution or laws or treaties of the United States." The public has a strong interest in ensuring that the habeas petitioner does not continue in an unconstitutional detention simply because he was unable to fully and completely support his one petition for relief because he was not served with the respondents' referenced exhibits.
III. CONCLUSION
This Court denies respondents' request for a stay pending appeal because it finds that respondents' appeal has little likelihood of success, that respondents will not suffer irreparable harm if a stay is not granted, that petitioner will suffer injury if a stay is granted, and that the public interest weighs in favor of providing petitioner his right to challenge his conviction without delay.
However, as requested by respondents, this Court will postpone application of this Court's February 23, 2002 Order until June 6, 2003 to allow respondents the opportunity to seek a stay from the appellate Court.
ORDER
This matter having come before the Court upon the motion of Respondents for stay pending appeal of this Court's February 25, 2003 Order, [Docket Item 31-1]; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this ___ day of May, 2003 hereby
ORDERED that Respondents' motion for stay pending appeal [Docket Item 21-1] be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that the time in which the Respondents shall serve the state court record upon the Petitioner, which was due on March 17, 2003 under this Court's Order of February 25, 2003, will be TEMPORARILY DELAYED so that the Respondents shall serve Petitioner on or before June 6, 2003.