Howard v. Hobbs

Filing 25

ORDER granting in part and denying in part 16 Petitioner's Motion to Compel. Within 30 days, Respondent shall produce the ADC file of Petitioner's 1/29/2013 disciplinary conviction. Petitioner's remaining requests for production are denied. Petitioner's Motions requesting leave to propound Requests for Admissions and Interrogatories 19 and 20 , and 15 and 23 Motions for Evidentiary Hearing, are denied. Signed by Magistrate Judge J. Thomas Ray on 03/10/2015. (kcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

NORRIS B. HOWARD
ADC #83225

VS.

PETITIONER

5:14CV00062 DPM/JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
In this habeas action, Petitioner attacks a January 29, 2013 disciplinary
conviction and the subsequent denial or “rescission” of his release on parole. He
has filed several motions that collectively request various forms of discovery,
which are addressed below.1
As to his January 29, 2013 disciplinary conviction, Petitioner requests the
production of: (1) “all 005 forms filed by any staff;” (2) witness statements; (3)
“memos accepted into evidence by the DHO;” (4) “the charging officer’s statement
if different from the statement written on the [major disciplinary] form;” (5) a copy

1

Pursuant to Rule 6(a) of the Rules Governing § 2254 cases, the Court may, for “good cause,” authorize a
party to conduct discovery pursuant to the Federal Rules of Civil Procedure. See also Bracy v. Gramley, 520 U.S.
899, 904-09 (1997) (“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery
as a matter of ordinary course”; instead, the petitioner must first demonstrate “good cause” before obtaining the
court’s permission to engage in discovery).

of the letter he [Petitioner] wrote; and (6) a “complete transcript” of the January
29, 2013 disciplinary hearing.
Respondent objects to Petitioner’s request for discovery. As to the
underlying habeas claim, Respondent argues, among other things, that “some
evidence” supports the January 29, 2013 disciplinary conviction, and that the due
process requirements for a prison disciplinary hearing were satisfied. In support of
this argument, Respondent cites to “Howard’s attachments to his petition [which]
indicate that these requirements of due process were met[.]” Doc. 12 at 6.
However, Respondent does not indicate whether “Howard’s attachments to his
petition” constitute the complete ADC file of the January 29, 2013 disciplinary
conviction.2
In determining whether “some evidence” supports the January 29, 2013
disciplinary, it would be helpful to the Court to have the ADC file of the
disciplinary conviction. Thus, the Court will require Respondent to produce the
ADC file of the January 29, 2013 disciplinary conviction. Petitioner’s remaining
requests for discovery, including leave to propound Interrogatories and Requests
for Admissions, will be denied.
As to the denial or “rescission” of parole, Petitioner requests: (1) various
Parole Board policies and procedures; (2) “a complete transcript” of his June 6,
2

The documents attached to the Petition include the disciplinary charging document, the decision of the
DHO, and Petitioner’s appeal documents. Doc. 2 at 39-58. The DHO’s decision references various documents that
were part of the “evidence relied upon” that are not attached to the habeas Petition. Doc. 2 at 41.

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2013 Parole Board hearing; and (3) a copy of any “vote sheet” whereby the Parole
Board voted to “rescind” his parole.
Notably, Respondent argues that Petitioner’s habeas claim regarding the
Parole Board is procedurally defaulted due to Petitioner’s failure to exhaust
available remedies in state court. When the Court takes up the merits of the habeas
Petition, it will determine whether this procedural default defense has merit. If the
Court determines that Petitioner has not procedurally defaulted this claim, it can
revisit the issue of whether the factual record is adequately developed. Thus,
Petitioner’s requests for discovery with regard to his Parole Board claim will be
denied at this time.
Finally, Petitioner requests an evidentiary hearing. It is the general practice
of the Court to resolve habeas Petitions based on the pleadings alone and hold
hearings only if there are factual issues that need to be resolved. See Rule 8 of the
Rules Governing § 2254 cases (providing that a district court has the discretion to
hold an evidentiary hearing if a habeas petition is not dismissed at an earlier stage
in the proceeding). Accordingly, Petitioner's request for an evidentiary hearing will
be denied at this time, subject to revisiting the issue once the Court takes up the
Petition.

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IT IS THEREFORE ORDERED THAT:
1.

Petitioner’s Motion to Compel Production (doc. 16), is GRANTED,

IN PART, and DENIED, IN PART. Within thirty days of the entry of this Order,
Respondent shall produce the ADC file of Petitioner’s January 29, 2013
disciplinary conviction. Petitioner’s remaining requests for production are
DENIED.
2.

Petitioner’s Motions requesting leave to propound Requests for

Admissions and Interrogatories (dos. 19 and 20), and Motions for an Evidentiary
Hearing (docs. 15 and 23), are DENIED.
Dated this 10th day of March, 2015.

__________________________________
UNITED STATES MAGISTRATE JUDGE

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