United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTIONS FOR AN
EVIDENTIARY HEARING, FOR DISCOVERY, AND FOR THE APPOINTMENT
F. Cox, U.S. District Judge.
the Court is habeas petitioner Jesse Peoples' motions for
an evidentiary hearing, for discovery, and for the
appointment of counsel. For the reasons stated below, the
motions are denied without prejudice.
The motion for an evidentiary hearing.
has filed a 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
requires. 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). Under the provisions of the Antiterrorism
and Effective Death Penalty Act, evidentiary hearings are not
mandatory in habeas cases. See Vroman v. Brigano,
346 F.3d 598, 606 (6th Cir. 2003). An evidentiary hearing may
be held only when the habeas petition “alleges
sufficient grounds for release, relevant facts are in
dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Sawyer v. Hofbauer, 299
F.3d 605, 610 (6th Cir. 2002). An evidentiary hearing is not
required where the record is complete or if the petition
raises only legal claims that can be resolved without the
taking of additional evidence. Ellis v. Lynaugh, 873
F.2d 830, 840 (5th Cir. 1989); United States v.
Sanders, 3 F.Supp.2d 554, 560 (M.D. Pa. 1998).
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.
has also filed a motion for discovery. “A 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 to demonstrate that he 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 at 460. In Cullen v. Pinholster, 563 U.S. 170,
181 (2011), the Supreme Court further limited discovery
holding 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 proceedings.
has not yet filed an answer to the petition for a writ of
habeas corpus. Until a 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
petitioner's discovery request at this time would be
premature. Therefore, the motion for discovery will be denied
without prejudice. Id.
The motion for the appointment of counsel.
has filed a motion for the appointment of counsel.
Court will deny the motion for the appointment of counsel.
There is no constitutional right to counsel in habeas
proceedings. Cobas v. Burgess, 306 F.3d 441, 444
(6th Cir. 2002). The decision to appoint counsel for a
federal habeas petitioner is within the discretion of the
court and is required only where the interests of justice or
due process so require. Mira v. Marshall, 806 F.2d
636, 638 (6th Cir. 1986). “Habeas corpus is an
extraordinary remedy for unusual cases” and the
appointment of counsel is therefore required only if, given
the difficulty of the case and petitioner's ability, the
petitioner could not obtain justice without an attorney, he
could not obtain a lawyer on his own, and he would have a
reasonable chance of winning with the assistance of counsel.
See Thirkield v. Pitcher, 199 F.Supp.2d 637, 653
(E.D. Mich. 2002). Appointment of counsel in a habeas
proceeding is mandatory only if the district court determines
that an evidentiary hearing is required. Lemeshko v.
Wrona, 325 F.Supp.2d 778, 787 (E.D. Mich. 2004). If no
evidentiary hearing is necessary, the appointment of counsel
in a habeas case remains discretionary. Id.
may be appointed, in exceptional cases, for a prisoner
appearing pro se in a habeas action.
Lemeshko, 325 F.Supp.2d at 788. The exceptional
circumstances justifying the appointment of counsel to
represent a prisoner acting pro se in a habeas
action occur where a petitioner has made a colorable ...