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Dassey v. Dittmann

United States District Court, E.D. Wisconsin

October 12, 2016

BRENDAN DASSEY, Petitioner,
v.
MICHAEL A. DITTMANN, Respondent.

          ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         On August 12, 2016, this court granted Brendan Dassey's petition for a writ of habeas corpus. (ECF No. 23); Dassey v. Dittmann, 2016 WL 4257386, 2016 U.S. Dist. LEXIS 106971 (E.D. Wis. Aug. 12, 2016). The respondent appealed this court's decision on September 9, 2016. (ECF No. 25.)

         On October 5, 2016, the respondent filed a motion to supplement the record on appeal. (ECF No. 32.) The respondent requested that the court expedite the resolution of his motion because the outcome would affect his appellate brief, which is due on October 19, 2016. The court ordered Dassey to respond to the motion not later than October 12, 2016. Dassey responded on October 10, 2016.

         The respondent seeks to add five exhibits to the record on appeal:

Exhibit 1: Transcript of Dassey's February 27, 2006 interview at the Two Rivers Police Department. This document was submitted as an exhibit at Dassey's postconviction hearing. (See state court record no. 173:90.)
Exhibit 2: Audio recording of Dassey's February 27, 2006 interview at Mishicot High School. The two discs containing the recording of this interview were submitted as an exhibit at the postconviction hearing. (See state court record no. 173:205.) The transcript of this interview was provided to this Court with Respondent's Answer. (See Dkt. 19-24.)
Exhibit 3: Audio/video recording of Dassey's February 27, 2006 interview later that afternoon at the Two Rivers Police Department. A DVD with the recording of this interview was submitted as an exhibit at the postconviction hearing. (See state court record no. 173:207.)
Exhibit 4: Audio recording of Dassey's squad car ride from Mishicot High School to the Manitowoc Police Department. A disc with this recording was submitted as an exhibit at the postconviction hearing. (See state court record no. 173:208.)
Exhibit 5: Handwritten statement of Kayla Avery, dated March 7, 2006, introduced at trial as Exhibit 163. (See state court record no. 78.)

(ECF No. 32 at 2.) None of these exhibits were before this court when it considered Dassey's petition. Dassey does not oppose the addition of Exhibits 1, 2, 3, and 4 to the record on appeal but does oppose the addition of Exhibit 5.

         Federal Rule of Appellate Procedure 10(e)

         “If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded [to the court of appeals].” Fed. R. App. P. 10(e)(2).

         This provision is not an invitation for parties to add to the appellate record matters that were not presented to the district court. See, e.g., Shasteen v. Saver, 252 F.3d 929, 935 (7th Cir. 2001) (quoting United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir. 1987) (“Rule 10(e) does not give this court authority to admit on appeal any document which was not made a part of the record in the district court.”) “The purpose of rule 10(e) is to ensure that the record on appeal accurately reflects the proceedings in the [district] court (thereby allowing [the court of appeals] to review the decision that the [district] court made in light of the information that was actually before it), not to enable the losing party to add new material to the record in order to collaterally attack the [district] court's judgment.” United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001).

         Although courts have occasionally relied upon a stipulation of the parties under Rule 10(e)(2)(A) to expand the record beyond matters presented to the district court, see, e.g., Bowie v. Thurmer, 2008 U.S. Dist. LEXIS 121115, 2 (E.D. Wis. Mar. 20, 2008) (court treating respondent's lack of objection to petitioner's motion to expand the record on appeal as a stipulation under Rule 10(e)(2)(A) and thus expanding the appellate court record to include matters not before the district court), the court is not persuaded that the lack of an objection, standing alone, permits the district court to expand the record on appeal to include matters not presented to the district court. See, e.g., S & E Shipping Corp. v. Chesapeake & O. R. Co., 678 F.2d 636, 641 (6th Cir. 1982) (noting that the district court interpreted Rule 10(e) “too broadly” when it accepted the parties' stipulation to add to the appellate record matters not ...


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