Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-01235-WYD

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Filed 12/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01235-WYD JASON ALAN CAPPELLI, Applicant, v. JOE ORTIZ, Executive Director, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. MOTION FOR LEAVE TO SUBMIT COPIES OF ORIGINAL STATE COURT RECORD FOR USE IN APPLICANT'S 28 U.S.C. § 2254 FEDERAL HABEAS CORPUS CASE

Respondents, by the Attorney General of the State of Colorado, move for leave to submit copies of the original state court record for use in Applicant's 28 U.S.C. § 2254 federal habeas corpus case, for the following reasons: 1. On November 21, 2005, this Court ordered Respondents to provide transcripts and pleadings from Mr. Cappelli's state court case no. 99CR1378, which were filed in the trial court and appellate courts. Those pleadings are due on or before December 12, 2005. 2. The appeal from Mr. Cappelli's state postconviction motion in case no. 99CR1378 is presently pending before the Colorado Court of Appeals in People v. Capelli, No. 04CA1682. The Colorado Court of Appeals has received the original state court records, certified by the Official Court Reporter from the Jefferson County District Court, and is

Case 1:04-cv-01235-WYD

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using the records in the pending appeal. Thus, as stated in Respondents' Answer filed on August 18, 2004, the original state court record is presently unavailable due to pending state court proceedings. The briefing schedule is presently in progress in the state court appeal and it is unknown when those proceedings will conclude. 2. While the Attorney General's office had obtained temporary possession of the original state court records in order to prepare a brief in the state court appeal, the undersigned attorney arranged for copies of the record to be made. Respondents move for leave to submit these copies in place of the original record in order to avoid delay. 3. Other alternatives would be to stay this federal habeas corpus case and hold it in abeyance until the state court proceedings have concluded, see Rhines v. Weber, ___ U.S. ___, 124 S.Ct. 1528 (2005) ( a federal district court has the authority to stay a federal habeas corpus petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims); or to accept the transcript copies and/or the briefs attached to the Respondents' Answer as a "narrative summary" as provided in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. 4. The undersigned counsel has conferred with Mr. Cappelli's attorney, Mr. Paul Grant, who does not oppose the submission of copies of the original state court records. At Mr. Grant's request, Mr. Cappelli's trial attorney in the state court proceedings (Mr. Vincent Todd) examined the copies made by the Attorney General's Office and Mr. Todd indicated that they were acceptable.

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5. Undersigned counsel will submit the state court record copies in conjunction with the filing of this motion. A list of the transcripts which are being submitted is attached as an exhibit to this motion. WHEREFORE, Respondents respectfully request that this motion for leave to submit copies of the original state court record for use in Applicant's 28 U.S.C. § 2254 federal habeas corpus case be granted. JOHN W. SUTHERS Attorney General /s/ Laurie A. Booras LAURIE A. BOORAS, 19648* First Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-5785 FAX: (303) 866-3955

AG ALPHA: AG FILE:

DAXX GZGN P:\AP\APBOORLA\CAPPELLI.MOT.DOC

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CERTIFICATE OF SERVICE

I hereby certify that on this _9th___ day of December, 2005, I electronically filed the above MOTION FOR LEAVE TO SUBMIT COPIES OF THE ORIGINAL STATE COURT RECORD FOR USE IN APPLICANT'S 28 U.S.C. § 2254 FEDERAL HABEAS CORPUS CASE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

[email protected] [email protected] /s/ Laurie A. Booras _______________________

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