Cullens v. Curtin

Filing 45

OPINION AND ORDER denying 4 Motion for Oral Argument;denying 5 Motion for immediate consideration and denying 6 Motion for Evidentiary Hearing. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GAVIN KEITH CULLENS,
Petitioner,
v.

Case No. 13-11835

CINDI CURTIN,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER’S MOTION FOR ORAL ARGUMENT,
MOTION FOR IMMEDIATE CONSIDERATION, AND
MOTION FOR EVIDENTIARY HEARING
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Gavin Keith
Cullens challenges his convictions for felonious assault, assault with intent to cause
great bodily harm, felon in possession of a firearm, and felony firearm. Before the Court
are Petitioner’s Motion for Oral Argument, Motion for Immediate Consideration, and
Motion for Evidentiary Hearing.
A federal district court can grant oral argument in a habeas case where it would
assist in resolving the matters raised in the habeas petition. See e.g., Haskell v.
Berghuis, 695 F. Supp. 2d 574, 584 (E.D. Mich. 2010). The court finds, at this time, that
oral argument is not necessary. If, at a later date, the court determines that oral
argument would be beneficial, the court will schedule oral argument without necessity of
the filing of an additional motion.
Petitioner seeks immediate consideration of his petition. The court endeavors to
adjudicate all matters, including habeas corpus petitions, in as timely a manner as

justice requires and the court’s pending caseload allows. The court will address the
merits of the petition as expeditiously as possible. Thus, the court will deny the motion
as unnecessary.
Finally, Petitioner moves for an evidentiary hearing. Rule 8 of the Rules
Governing 2254 Cases in the United States District Courts states, in pertinent part:
If the 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 review of those proceedings and of the
expanded record, if any, determine whether an evidentiary hearing is
required.
Having conducted a preliminary review of this case, the court finds that an evidentiary
hearing is not required. Respondent has submitted the transcripts and documents
relevant to the adjudication of the petition as mandated by Rule 5 of the Rules
Governing Section 2254 Cases, and it appears that Petitioner’s habeas claims can be
decided based upon the existing record before the court. See Schriro v. Landrigan, 550
U.S. 465, 474 (2007). Moreover, the United States Supreme Court has made clear that
federal 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.” Cullen v. Pinholster, —
U.S. —, 131 S. Ct. 1388, 1398 (2011). Consequently, Petitioner is precluded from
introducing into the habeas proceeding information that was not presented to the state
courts. See, e.g., Hanna v. Ishee, 694 F.3d 596, 606 (6th Cir. 2012) (stating that even if
a court conducted an evidentiary hearing on a claim adjudicated by the state court, it
would have to “disregard newly obtained evidence”).
Additionally, an evidentiary hearing is not warranted under 28 U.S.C.
§ 2254(e)(2), which applies to claims not adjudicated on the merits in the state courts.
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Keeling v. Warden, 673 F.3d 452, 464 (6th Cir. 2012). That provision states:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would 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). Petitioner has not shown that any of his claims rely on a new
rule of constitutional law or a factual predicate that could not have been previously
discovered through the exercise of due diligence. Therefore, an evidentiary hearing is
also not warranted under § 2254(e)(2). Accordingly,
IT IS ORDERED that Petitioner’s “Motion for Oral Argument,” [Dkt. # 4] “Motion
for Immediate Consideration,” [Dkt. #5] and “Motion for Evidentiary Hearing,” [Dkt. # 6]
are DENIED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: March 12, 2014

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 12, 2014, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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