Phillip Brown v Carol Howes
Filing
98
ORDER granting 82 Motion for Clarification ; granting 83 Motion to Amend/Correct; denying 84 Motion to Expand the Record ; granting 86 Motion for Leave to File Supplemental Brief; granting 87 Motion to Amend/Correct Petition; denying 93 Motion for Evidentiary Hearing. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Phillip Brown,
Petitioner,
Case No. 09-CV-14850
Honorable Patrick J. Duggan
v.
David Bergh,
Respondent.
______________________________/
ORDER GRANTING PETITIONER’S MOTIONS: (1) FOR
CLARIFICATION [ECF NO. 82], (2) TO AMEND CAPTION [ECF NO. 83],
(3) TO FILE SUPPLEMENTAL BRIEF [ECF NO. 86], AND (4) TO AMEND
PETITION [ECF NO. 87]; AND DENYING WITHOUT PREJUDICE
PETITIONER’S MOTIONS (1) TO EXPAND RECORD [ECF NO. 84] AND
(2) FOR EVIDENTIARY HEARING [ECF NO. 93]
Petitioner Phillip Brown is a Michigan prisoner seeking habeas relief
pursuant to 28 U.S.C. § 2254. The matter presently is before the Court on the
following motions filed by Petitioner: (1) motion for clarification; (2) motion to
amend caption; (3) motion to expand record; (4) motion for leave to file
supplemental brief; (5) motion to amend petition; and (6) motion for evidentiary
hearing.
Motion for Clarification
In his motion for clarification, Petitioner asserts that he intended for his
amended petition [ECF No. 3] to be considered along with his counsel’s
supplemental brief [ECF No. 78] when the Court decides the case. Together these
two pleadings raise fourteen grounds in support of Petitioner’s requested relief.
Respondent’s Answer [ECF No. 90] reflects that he interpreted Petitioner’s
pleadings as raising these fourteen claims. The Court likewise construes these
pleadings as raising fourteen claims. Therefore, the Court is granting Petitioner’s
motion for clarification.
Motion to Amend Caption
In this motion, Petitioner indicates that he now is incarcerated at the Thumb
Correctional Facility. The only proper respondent in a habeas case is the habeas
petitioner’s custodian, which in the case of an incarcerated petitioner is the warden
of the facility where the petitioner is incarcerated. See Rule 2(a) of the Rules
Governing § 2254 Cases; see also Edwards v. Johns, 450 F. Supp. 2d 755, 757
(E.D. Mich. 2006) (citing Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir.1996)). The
Court therefore is granting Petitioner’s motion to amend the caption and substitutes
Warden David Bergh of the Thumb Correctional Facility as Respondent in this
matter.
Motion to Expand
Petitioner seeks to expand the record by admitting affidavits from two
witnesses to support several of his claims. The Court may permit the record to be
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expanded to include additional materials relevant to the determination of the
habeas petition. See Rule 7 of the Rules Governing § 2254 Cases. To the extent
the requested materials were submitted to the state courts on direct or collateral
review, they are part of the state court record and can be considered by the Court
pursuant to Rule 5 of the Rules Governing § 2254 Cases. However, to the extent
the materials are new and were not part of the state court record, they may not be
considered by the Court on habeas review. See Cullen v. Pinholster, – U.S. – , 131
S. Ct. 1388, 1398 (2011) (ruling that habeas review under 28 U.S.C. § 2254(d) is
“limited to the record that was before the state court that adjudicated the claim on
the merits”).
At this juncture, the Court is not prepared to decide whether it will be
reviewing the merits of the claims for which this evidence is submitted or whether
the evidence was part of the state court record. The Court therefore is denying
without prejudice Petitioner’s request to expand the record. If the Court eventually
considers the merits of the claims, it will consider the affidavits if it can do so
pursuant to Pinholster. Petitioner need not renew his motion to have the evidence
considered.
Motion to File Supplemental Brief
Petitioner seeks permission to file a supplemental brief addressing what he
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claims are significant changes in the law with respect to the standard of review.
Petitioner, in fact, has already filed the supplemental brief [ECF No. 88].
Respondent’s Answer was filed after the filing of the supplemental brief and
addresses the standard of review issues Petitioner raises. The Court will consider
Petitioner’s supplemental brief in its dispositive opinion. As such, the Court is
granting the motion to file the supplemental brief.
Motion to Amend Petition
Petitioner seeks to add three new claims to his petition. He asserts that these
claims were exhausted during state post-conviction proceedings. Petitioner states
that he attempted to add these issues to his petition in his motion for leave to
amend [ECF No. 71] when he moved to stay this case [ECF No. 70], but that the
Court misconstrued his intent when it denied the motion [ECF No. 81].
Although Respondent already filed a response, Federal Rule of Civil
Procedure 15 provides that the Court should freely allow a party to amend when
justice so requires. Fed. R. Civ. P. 15(a)(2). Respondent will not be prejudiced if
the Court allows Petitioner to amend his petition to add these three additional
claims. The Court, therefore, is granting the motion to amend.
Respondent may file a supplemental answer addressing these three claims
within forty-five (45) days of this Order.
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Evidentiary Hearing
Petitioner seeks an evidentiary hearing to support several of his claims. He
asserts that these claims are not subject to procedural default and were not
adjudicated on the merits by the state courts.
When 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, 127
S.Ct. 1933, 1940 (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. (citation and footnote omitted). “[I]f 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. Stanford v.
Parker, 266 F.3d 442, 459-60 (6th Cir. 2001) (citation omitted). “Under [the]
AEDPA, evidentiary hearings are not mandatory.” 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,
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and the state courts did not hold a full and fair evidentiary hearing.” Stanford, 266
F.3d at 459.
Petitioner’s motion for an evidentiary hearing is being denied without
prejudice because the Court has not yet had an opportunity to review the pleadings
and record in this case. Thus, the Court has not determined whether an evidentiary
hearing on Petitioner’s claims is needed. Once the Court reviews the pleadings,
the Rule 5 materials, and any additional materials filed, it will be in a better
position to determine whether an evidentiary hearing is necessary to resolve the
claims raised in the petition. Petitioner need not renew his motion for the Court to
make this determination.
Accordingly,
IT IS ORDERED, that Petitioner’s motion for clarification [ECF No. 82] is
GRANTED;
IT IS FURTHER ORDERED, that Petitioner’s motion to amend caption
[ECF No. 83] is GRANTED;
IT IS FURTHER ORDERED, that Petitioner’s motion to expand the
record [ECF No. 84] is DENIED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED, that Petitioner’s motion to file a
supplemental brief [ECF No. 86] is GRANTED;
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IT IS FURTHER ORDERED, that Petitioner’s motion to amend the
petition [ECF No. 87] is GRANTED and Respondent may file a supplemental
answer to address the amendment within forty-five (45) days;
IT IS FURTHER ORDERED, that Petitioner’s motion for an evidentiary
hearing [ECF No. 93] is DENIED WITHOUT PREJUDICE.
Dated: September 11, 2013
s/Patrick J. Duggan
United States District Judge
Copies to:
Paul D. Hudson, Esq.
AAG Raina I. Korbakis
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