ORDER GRANTING PETITIONER'S MOTION TO EXPAND THE RECORD

[Dkt. No. 29.]

GONZALO P. CURIEL, District Judge.

On June 5, 2017, Petitioner filed a motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases. (Dkt. No. 29.) Respondent has not filed an opposition. Based on the reasoning below, the Court GRANTS Petitioner's motion to expand the record.

Discussion

On February 9, 2015, Petitioner Khaled Mohamed ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with counsel. (Dkt. No. 1.) In 2011, a jury convicted Mohamed of possession of methamphetamine for sale; transportation of methamphetamine for sale between two noncontiguous countries; conspiracy to sell methamphetamine; conspiracy to possess methamphetamine for sale; and conspiracy to transport methamphetamine for sale. (Dkt. No. 12-10 at 362.) The jury also found he used a false compartment to transport methamphetamines and the quantity of methamphetamine exceeded 10 kilograms. (Id.) Mohamed was sentenced to 16 years in prison. (Id. at 363.)

The petition alleges the following claims: (1) violation of his Sixth Amendment right to counsel when the trial court denied his request to discharge retained counsel prior to trial; (2) ineffective assistance of appellate counsel and denial of due process because the court of appeal's did not order production of the free talk, which purportedly contained Brady material and revealed a conflict of interest; (3) denial of the Sixth Amendment right to counsel because the free talk revealed that his trial counsel had a conflict of interest; (4) Brady violation because the prosecution withheld the free talk from the defense; and (5) ineffective assistance of trial counsel because trial counsel did not use the free talk or call Lisa as a witness during trial precluding evidence that Petitioner was innocent and/or deserved a lesser punishment. (Dkt. No. 1 at 6-13.)

Central to Mohamed's petition is a "free talk" that occurred between Lisa, Mohamed's girlfriend at the time, and the district attorney prosecuting Mohamed's case. The prosecution successfully claimed privilege and the state court sealed the "free talk" pursuant to California Evidence Code section 1040.

The superior court held an evidentiary hearing after the court of appeal issued an order to show cause directing the superior court to hold an evidentiary hearing to review the contents of the "free talk" in order to resolve issues raised in Petitioner's state habeas petition. After the evidentiary hearing, the superior court denied the petition for writ of habeas corpus and discharged the OSC. (Dkt. No. 12-10 at 361-67.) In another habeas petition where Petitioner challenged the trial court's findings at the OSC evidentiary hearing, the court of appeal denied his petition without reviewing the transcript of the "free talk" and relied on the superior court's assessment of Lisa's comments during the "free talk." (Dkt. No. 12-11 at 359.)

In his motion, Petitioner seeks to expand the record for the Court to review the sealed transcripts of the "free talk" conducted by Deputy District Attorney Tag and Lisa, and an in-camera hearing1 with Deputy District Attorney Tag and state court Judge Bloom "where questions were propounded to Tag by defense counsel" that the court of appeal did not review.2 (Dkt. No. 29 at 1.) He claims these transcripts were never reviewed by the court of appeal and it improperly relied on the conclusions of the superior court judge at the order to show cause hearing. (Dkt. No. 29 at 4.)

Rule 7 of the Rules Governing Section 2254 Cases states that a judge "may direct the parties to expand the record by submitting additional materials relating to the petition." Such materials include, without limitation, "letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge." Id. "The purpose [of the rule] is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." Id. advisory committee's note on 1976 adoption. In Holland, the United States Supreme Court held that new evidence may be considered in a federal habeas corpus proceeding only when the failure to develop the facts in state court are not the petitioner's fault, or when the requirements of 28 U.S.C. § 2254(e)(2)3 are satisfied. Holland v. Jackson, 542 U.S. 649, 652-53 (2004).

Here, Petitioner has unsuccessfully sought the production of the sealed "free talk" transcript and has consistently argued in his state habeas petitions that the court of appeal erred by not reviewing the sealed transcript of the "free talk." Therefore, the failure to develop the record was not Petitioner's fault.

In his motion, Petitioner cites to the recent Ninth Circuit case of Nasby v. McDaniel, 853 F.3d 1049 (9th Cir. 2017), where the Ninth Circuit vacated the district court's dismissal of the petition and remanded the case to consider the petition after obtaining and reviewing all relevant portions of the state court record. Id. at 1055. In Nasby, the district court did not consider any of the state court records including the trial transcript and the transcript of the evidentiary hearing held by the state court which were relevant to deciding Petitioner's claim. Id. at 1053. Instead, the district court relied on the facts as described in the Supreme Court's opinion denying relief. Id. at 1052. In remanding the case back to the district court, the court explained that in order for there to be meaningful collateral review, the district court must independently review the basis for the state court's decision. Id. at 1052-53 (citing Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997)). The court explained that federal habeas courts must "examine independently the basis for the state court's decision, rather than to accept the state court's determination of the facts on faith." Id. at 1053.

Here, in one of his claims, Petitioner argues that the state appellate court erred by failing to review the transcript of the "free talk" and relied solely on the trial court's review of the contents of the "free talk." Moreover, all the claims in the Petition originate from the contents of the "free talk." Therefore, if Petitioner's allegations are true, he may be entitled to habeas relief. In order to conduct a meaningful collateral review, the Court must independently consider all relevant state court records, including the transcripts of the "free talk" and in-camera hearing concerning the privilege issue that relate to certain claims in his petition.

Accordingly, the Court GRANTS Petitioner's motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases. Respondent is directed to submit a lodged copy of the sealed "free talk" transcript and/or audio recording, and the sealed in-camera hearing transcript to the chambers of the undersigned judge for an in-camera review on or before August 11, 2017.

IT IS SO ORDERED.