Allen v. Cain et al

Filing 30

ORDER & REASONS: for the reasons stated, IT IS ORDERED that pla's 28 Motion to Compel and 29 Objections and Renewed Motion Concerning this Court's Latest Denial of Request for Compelled Production of Computers Held by Ineffective Defense Lawyer Davidson Ehle are DENIED. Signed by Magistrate Judge Karen Wells Roby on 6/23/2011. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES ALLEN

CIVIL ACTION

VERSUS

NO. 10-4507

BURL CAIN

SECTION “J”(4)

ORDER AND REASONS
The petitioner, Charles Allen, has filed a Motion to Compel Discovery of Grievances Filed
by Prisoners Against “Inmate Counsel” Eddie Viree (Rec. Doc. No. 28), in which Allen requests
that this Court order discovery or production by the State of grievance forms filed by other inmates
against Eddie Viree related to his actions as inmate counsel. Allen has also filed a pleading entitled
Objections and Renewed Motion Concerning this Court’s Latest Denial of My Request for
Compelled Production of My Computers Held by Ineffective Defense Lawyer Davidson Ehle
(Rec. Doc. No. 29), in which he requests reconsideration of his earlier motion seeking to have this
Court compel his prior state court counsel to produce his computers seized by police during his
criminal proceedings and which are still in counsel’s custody.
As with Allen’s prior discovery motions, he has failed to attach evidence of his efforts to
obtain copies of these grievances from anyone. This Court therefore has not been provided with the
required information for this request to be treated as a motion to compel under Fed. R. Civ. P. 37.
Furthermore, and most importantly, the Court has not found any basis for ordering discovery in this

habeas case, especially in light of the irrelevance of the materials sought by Allen. With regard to
inmate counsel, a prisoner does not have a constitutional right to counsel when seeking postconviction review or collateral relief and alleged errors or delays by post conviction counsel are not
relevant to federal habeas relief. See Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002); U.S. v. Riggs,
314 F.3d 796, 799 (5th Cir. 2002). There is no basis for this Court to allow discovery in connection
with administrative complaints about the past performance of Allen’s alleged inmate counsel. His
motion for same is denied.
The Court will not reconsider Allen’s meritless motion regarding recovery of his computers,
for the reasons already assigned when initially addressing the motion. Allen has been repeatedly
advised by this Court, the United States Supreme Court has held that the federal courts’ review
under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the
claims. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The record for this Court to review is
limited to the record as it existed before the state courts. Id. Therefore, it would be inappropriate
to allow Allen to present this Court with the computers or any information thereon as exhibits to be
used to support this federal petition.
Furthermore, Allen’s continued exclamation of his “actual innocence” is not relevant to this
Court’s review. As a general rule, free-standing claims of actual innocence are not subject to federal
habeas review and gives him no special privilege in pursuing his federal habeas petition. “Never
having seen such a claims that was supported by anything that even approached a ‘truly persuasive
demonstration’ of actual innocence, ‘[t]he Fifth Circuit has rejected this possibility and held that
claims of actual innocence are not cognizable on federal habeas review . . .’” Cantu v. Thaler, 632
F.3d 157, 167 (5th Cir. 2011) (quoting Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)). The

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Fifth Circuit also has not found a claim of actual innocence to excuse the untimeliness of a federal
petition. Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002). Accordingly,
IT IS ORDERED that Allen’s Motion to Compel Discovery of Grievances Filed by
Prisoners Against “Inmate Counsel” Eddie Viree (Rec. Doc. No. 28) and his Objections and
Renewed Motion Concerning this Court’s Latest Denial of My Request for Compelled
Production of My Computers Held by Ineffective Defense Lawyer Davidson Ehle (Rec. Doc.
No. 29) are DENIED.
New Orleans, Louisiana, this ______ day of June, 2011.

____________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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