Wessinger v. Cain, et al

Filing 134

RULING AND ORDER: The Court will DEFER ruling on Petitioners 120 motion at this time. As the necessity and/or availability of an evidentiary hearing will be made on a claim by claim basis, the Court will make such a determination as it decides the merits of Petitioners habeas corpus application. During this process, the Court will review the record of this matter and determine if, under Pinholster and related cases, a hearing may be available or mandated. Signed by Judge James J. Brady on 10/17/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TODD KELVEN WESSINGER
CIVIL ACTION
VERSUS
NO. 04-637-JJB
BURL CAIN, ET AL.
RULING AND ORDER
Petitioner has filed an application for a writ of Habeas Corpus (doc.
120). Respondent has filed an Opposition (doc. 129) to which Petitioner
replied (doc. 132). Petitioner seeks an evidentiary hearing to develop
further the factual basis for some of his claims.

Respondent contends

Petitioner is not entitled to such a hearing.
The United States Supreme Court has recently clarified the
applicability of the evidentiary hearing provision of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. In Cullen v.
Pinholster, the Court ruled that district court review is limited to the record
before the state court when the petitioner’s claims were adjudicated at the
state court and are therefore brought under § 2254(d). 131 S.Ct. 1388,
1398 (2011).

A determination by the state court of a factual issue is

presumed to be correct. 28 U.S.C. § 2254(e)(1). The applicant can rebut
the presumption by clear and convincing evidence. Id. The district court
shall not hold an evidentiary hearing unless the applicant has failed to

develop the factual basis for a claim in the state court proceedings and the
claim relies on either a new rule of constitutional law made retroactive by
the Supreme Court or is based on a factual predicate that could not been
previously discovered through due diligence on the part of the applicant.
28 U.S.C. § 2254(e)(2). An additional requirement is that these new facts
would have to be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(B).
In a recent case interpreting Pinholster, the Fifth Circuit instructed
that, while an evidentiary hearing is available only under “narrow
circumstances,” it “remains an important tool in cases where habeas
petitioners raise a claim that was not adjudicated on the merits in State
court, i.e. a claim to which §2254(d) does not apply.” McCamey v. Epps,
___ F.3d ___, WL 4445998 at *5 (5th Cir. 2011) (internal quotation and
emphasis omitted).
Petitioner asserts he was prevented from developing the factual basis
for his claims in state court by the refusal of funds to further investigate his
claims. He contends this failure to develop claims is not attributable to a
lack of due diligence on his part and cannot be the basis for denying him an
evidentiary hearing. (Doc. 132 at 27). Respondent argues Petitioner does
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not qualify for a hearing because the state court ruled on all claims on the
merits. Even if he were to qualify for a hearing, Respondent argues such a
hearing is allowed, but not required, under § 2254(e)(2). (Doc. 129 at 33).
The Court will DEFER ruling on Petitioner’s motion at this time. As
the necessity and/or availability of an evidentiary hearing will be made on a
claim by claim basis, the Court will make such a determination as it decides
the merits of Petitioner’s habeas corpus application. During this process,
the Court will review the record of this matter and determine if, under
Pinholster and related cases, a hearing may be available or mandated. If
the Court finds a hearing necessary, it will notify the parties which claims
that hearing would encompass.

Signed in Baton Rouge, Louisiana, on October 17, 2011.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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