United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTIONS FOR AN
EVIDENTIARY HEARING, FOR DISCOVERY, FOR BOND PENDING APPEAL,
TO EXPEDITE REQUEST FOR AN EVIDENTIARY HEARING, AND TO REMAND
TO THE STATE COURT FOR A NEW APPEAL
Corbett O'Meara United States District Judge
Maurice Lyons-Bey, (“petitioner), filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his convictions for assault with intent to do
great bodily harm less than murder, conspiracy to commit
assault with intent to do great bodily harm less than murder,
armed robbery, and conspiracy to commit armed robbery. On
October 26, 2016, Magistrate Judge R. Steven Whalen signed an
Order of Responsive Pleading, requiring the respondent to
file an answer by May 1, 2017. Before the Court are
petitioner's motions for an evidentiary hearing, for
discovery, for bond pending appeal, to expedite his request
for an evidentiary hearing, and to remand to the state court
for a new appeal. For the reasons stated below, the motions
are denied without prejudice.
The motion for an evidentiary hearing.
habeas petition is not dismissed at a previous stage in the
proceeding, the judge, after the answer and the transcript
and record of state court proceedings are filed, shall, upon
a review of those proceedings and of the expanded record, if
any, determine whether an evidentiary hearing is required. If
it appears that an evidentiary hearing is not required, the
judge shall make such disposition of the petition as justice
shall require. 28 U.S.C. foll. § 2254, Rule 8(a);
Hence v. Smith, 49 F.Supp.2d 547, 549 (E.D. Mich.
deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable the
habeas petitioner to prove the petition's factual
allegations, which, if true, would entitle the petitioner to
federal habeas relief on his claim or claims. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). “[B]ecause
the deferential standards prescribed by § 2254 control
whether to grant habeas relief, a federal court must take
into account those standards in deciding whether an
evidentiary hearing is appropriate.” Id. If
the record refutes the habeas petitioner's factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.
Id. Stated differently, a habeas petitioner is not
entitled to an evidentiary hearing on his claims if they lack
merit. See Stanford v. Parker, 266 F.3d 442, 459-60
(6th Cir. 2001).
motion for an evidentiary hearing will be denied without
prejudice because the Court has not yet received an answer or
the state court record from respondent. Without these
materials, the Court is unable to determine whether an
evidentiary hearing on petitioner's claims is needed.
Following receipt of these materials, the Court will then
determine whether an evidentiary hearing is necessary to
resolve petitioner's claims.
The motion for discovery.
habeas petitioner, unlike the usual civil litigant, is not
entitled to discovery as a matter of ordinary course.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead,
a habeas petitioner is entitled to discovery only if the
district judge “in the exercise of his discretion and
for good cause shown grants leave” to conduct
discovery. Rule 6 Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254. To
establish “good cause” for discovery, a habeas
petitioner must establish that the requested discovery will
develop facts which will enable him or her to demonstrate
that he or she is entitled to habeas relief. See
Bracy, 520 U.S. at 908-09. The burden is on the
petitioner to establish the materiality of the requested
discovery. See Stanford v. Parker, 266 F.3d 442, 460
(6th Cir. 2001). A further limitation on discovery is the
case of Cullen v. Pinholster, 563 U.S. 170, 181
(2011), in which the Supreme Court held that under the clear
language of the 28 U.S.C. § 2254(d), a district court is
precluded from considering new evidence when reviewing a
petition under § 2254(d) where the petitioner's
claims were adjudicated on the merits in state court
respondent files an answer to the habeas petition, “it
is impossible to evaluate what, if any, discovery is needed
and whether the discovery is relevant and appropriately
narrow.” Gengler v. United States ex rel. Dept. of
Defense & Navy, 463 F.Supp.2d 1085, 1114-15 (E.D.
Cal. 2006); See also Shaw v. White, No. 2007 WL
2752372, * 3 (E.D. Mich. Sept. 21, 2007). In addition, none
of the Rule 5 materials have been received by the Court;
“and receipt of those materials may obviate the need to
order discovery.” Shaw, No. 2007 WL 2752372,
at * 3. Granting the discovery request at this time would be
premature. The motion for discovery is denied without
The motion for bond.
receive bond pending a decision on the merits of a habeas
corpus petition, a petitioner must show a substantial claim
of law based on the facts and exceptional circumstances
justifying special treatment in the interest of justice.
Lee v. Jabe, 989 F.2d 869, 871 (6th Cir.
1993)(quoting Dotson v. Clark, 900 F.2d 77, 79 (6th
Cir. 1990)). There will be few occasions where a habeas
petitioner meets this standard. Dotson, 900 F.2d at
79. Federal courts may grant bail when granting the writ.
See Sizemore v. District Court, 735 F.2d 204, 208
(6th Cir. 1984). By implication, a federal court should not
grant bail under other circumstances. In light of the fact
that petitioner failed to establish at this time that he
would prevail on the merits of his claims, he is not entitled
to release on bail. See e.g. Greenup v. Snyder, 57
F. App'x. 620, 621-22 (6th Cir. 2003).
The motion to expedite.
requests an expedited hearing on his petition.
Court's order of responsive pleadings requires an answer
to be filed by respondent no later than May 1, 2017. At that
time, the Court will consider and dispose of the case as
justice so requires. This Court has the discretion under the
rules governing responses in habeas corpus cases to set a
deadline for a response to a habeas petition. Erwin v.
Elo,130 F.Supp.2d 887, 891 (E.D. Mich. 2001); 28 U.S.C.
§ 2243.. As another judge in this district has
indicated: “There is no way a § 2254 case can be
decided on a petitioner's submission only, and a court
should not put itself in a position of considering the
petition without a response by the respondent.”
Mahaday v. Cason,222 F.Supp.2d 918, 921 (E.D. Mich.
2002)(citing to Beall v. Cockrell,174 F.Supp.2d 512
(N.D. Tex. 2001)). Until the Court receives the
respondent's answer, it is not in a position to address
the merits of petitioner's claims. Petitioner failed to
show good cause to expedite a ruling on his petition for
habeas relief to the detriment of petitions filed prior to
the filing of his petition, because petitioner has shown no
undue delay or that any delay had been or would be highly
prejudicial to him. See Castillo v. Pratt, 162
F.Supp.2d 575, 576 (N.D. Tex. 2001). Petitioner's request
and attack on his sentence “differs little ...