Townsend v. Hoffner

Filing 17

ORDER denying 3 Motion for Evidentiary Hearing; granting 9 Motion to Quash; denying 12 Motion to Compel; denying 14 Motion to Appoint Counsel. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LORENZO TOWNSEND,
Petitioner,
Case No. 13-14187
Honorable Patrick J. Duggan

v.
BONITA HOFFNER,
Respondent.
____________________________/

ORDER DENYING PETITIONER’S MOTIONS FOR AN EVIDENTIARY
HEARING (ECF No. 3), TO COMPEL COMPLIANCE WITH A
SUBPOENA (ECF No. 12), AND FOR APPOINTMENT OF COUNSEL (ECF
No. 14) AND GRANTING RESPONDENT’S MOTION TO QUASH
SUBPOENA AND FOR IMMEDIATE CONSIDERATION (ECF No. 9)
Petitioner Lorenzo Townsend, a Michigan state prisoner currently confined
at the Lakewater Correctional Facility in Coldwater, Michigan, filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 1,
2013 challenging the legality of his detention. (ECF No. 1.) Petitioner was
convicted of two counts of first-degree criminal sexual conduct, in violation of
Michigan Compiled Laws § 750.520b(1)(a), following a jury trial in the Genesee
County Circuit Court. He subsequently pleaded guilty to being a second habitual
offender, as set forth in Michigan Compiled Laws § 769.10. In 1994, as a result of
these convictions, the state court sentenced Petitioner to prison for a term of forty
to sixty years. In his habeas pleadings, Petitioner raises claims concerning the state

court’s jurisdiction, the effectiveness of counsel, and his actual innocence.
Respondent has not yet answered the petition or filed the state court record and
these materials are not due until April 29, 2014. (ECF No. 5.)
The matter is currently before the Court on Petitioner’s motions for an
evidentiary hearing (ECF No. 3), to compel compliance with a subpoena (ECF No.
12), and for the appointment of counsel (ECF No. 14), as well as Respondent’s
motion to quash a subpoena that Petitioner served upon the Genesee County
prosecutor and for immediate consideration (ECF No. 9). For the reasons stated
herein, the Court denies Petitioner’s motions and grants Respondent’s motion.
I.
A.

DISCUSSION

Motions Regarding the Subpoena
Petitioner seeks to compel compliance with a subpoena that he caused to be

served upon the Genesee County prosecutor in which he requested the production
of certain materials from his state-court criminal proceedings, including the
victim’s sworn testimony or affidavit, other witnesses’ testimony or affidavits, the
warrant request and disposition form, the recommendation for warrant, the
affidavit of felony warrant return, and any medical or police reports. Respondent,
on the other hand, seeks to quash the subpoena, arguing that Petitioner does not
have an automatic right to discovery and that even if such a right existed, the

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subpoena is premature because the State has more than two months to answer the
petition. Respondent’s position is the correct one.
“A habeas petitioner, unlike the usual civil litigant in federal court, is not
entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904, 117 S. Ct. 1793, 1796-97 (1997). Rather, a habeas petitioner hoping to
benefit from the discovery procedures set forth in the Federal Rules of Civil
Procedure must first demonstrate good cause. Rule 6(a) of the Rules Governing
Section 2254 Cases, 28 U.S.C. foll. § 2254. In Bracy, the Supreme Court of the
United States reiterated that “good cause” is provided by the presentation of
“specific allegations before the court show[ing] reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is . . . entitled
to relief[.]” 520 U.S. at 908-09, 117 S. Ct. at 1799 (quoting Harris v. Nelson, 394
U.S. 286, 300, 89 S. Ct. 1082, 1091 (1969)) (explaining that the Advisory
Committee’s Note on Habeas Corpus Rule 6 specifically provided that Habeas
Rule 6 should be interpreted “consistently” with Harris) (citation omitted). In this
case, Petitioner’s conclusory allegations regarding his purported need for the
documents he seeks are insufficient to discharge his burden of demonstrating an
entitlement to discovery. Petitioner has not shown that the information he seeks is
necessary for the disposition of this habeas action or that good cause warrants
discovery of the requested materials.

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A second reason justifying the denial of Petitioner’s motion to compel
compliance is that Respondent has not yet responded to Petitioner’s habeas
petition. Under the federal rules governing habeas corpus proceedings,
Respondent is required to submit all transcripts and other documents relevant to
the determination of the habeas petition at the time the answer is filed. Rule 5 of
the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. Further, pursuant
to Habeas Corpus Rule 7, the Court “may direct the parties to expand the record by
submitting additional materials relating to the petition.” Rule 7 of Rules
Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. Accordingly, if the
materials Petitioner seeks are not submitted along with the Rule 5 materials, the
Court will have the opportunity to determine whether the materials sought are
pertinent to Petitioner’s claims when it reviews the underlying petition.
For these reasons, the Court denies Petitioner’s Motion to Compel
Compliance and grants Respondent’s Motion to Quash as well as Respondent’s
request for immediate consideration.
B.

Motion for an Evidentiary Hearing
Petitioner requests an evidentiary hearing on his claim concerning the state

trial court’s jurisdiction and his Fourth Amendment rights. Petitioner asserts that
there is no evidence of a crime ever transpiring and further asserts that there are no

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affidavits or warrants supporting a probable cause determination. In short,
Petitioner believes that he was falsely arrested for a non-existent crime.
Looking beyond the fact that Fourth Amendment claims are generally not
cognizable on federal habeas review, see Stone v. Powell, 428 U.S. 465, 96 S. Ct.
3037 (1976), Petitioner’s request for an evidentiary hearing is premature at this
juncture. Habeas Rule 8(a), which governs evidentiary hearings in § 2254 cases,
provides, that if a habeas petition is not dismissed prior to the filing of an answer
by Respondent, “the judge must review the answer, any transcripts and records of
state-court proceedings, and any materials submitted under Rule 7 to determine
whether an evidentiary hearing is warranted.” Rule 8(a) of the Rules Governing
Section 2254 Cases, 28 U.S.C. foll. § 2254.
Although Petitioner filed his habeas petition with this Court on October 1,
2013, Respondent has not yet filed an answer to the petition or the Rule 5 materials
(the records from the state-court proceedings). As previously mentioned, the Court
has ordered that Respondent file these documents no later than April 29, 2014.
Because the language of Rule 8(a) makes it clear that the determination of whether
or not to hold an evidentiary hearing must be done after a court has the chance to
review the answer and attendant Rule 5 materials, Petitioner’s request for an

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evidentiary hearing comes too soon.1 As such, the Court denies Petitioner’s
motion for an evidentiary hearing.2
C.

Motion for Appointment of Counsel
On February 13, 2014, Petitioner filed a motion seeking the appointment of

counsel. Petitioner presents several arguments in support of his request for
counsel, including his indigent status, the complexity of the issues involved in his
case, his limited legal knowledge, his limited access to legal materials, and his
general inability to participate in the discovery process.
While mindful of the difficulties of proceeding pro se in a habeas corpus
action the Court notes that Petitioner has no absolute right to be represented by
counsel on federal habeas corpus review. Abdur- Rahman v. Mich. Dept. of Corrs.,
65 F.3d 489, 492 (6th Cir. 1995); Mira v. Marshall, 806 F.2d 636, 638 (6th Cir.
1986) (“The decision to appoint counsel for a federal habeas petitioner . . . is
required only where the interests of justice or due process so require.”) (citations
omitted). While Habeas Rules 6 (regarding discovery) and 8 (regarding

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To the extent that Petitioner’s request for an evidentiary hearing is being
made in connection with claims adjudicated on the merits by the state courts, the
Court notes that while sitting in federal habeas review, it may only consider the
record that was before the state court. Cullen v. Pinholster, 563 U.S. __, 131 S. Ct.
1388, 1398 (2011).
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Should the Court ultimately determine that the record be expanded
pursuant to Habeas Rule 7, the Court will make a determination regarding whether
or not to hold an evidentiary hearing.
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evidentiary hearings) both provide instruction to courts regarding the appointment
of counsel, these rules have not yet come into operation as the Court has already
denied Petitioner’s requests for discovery and an evidentiary hearing. Rules 6(a)
and 8(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.
Because neither discovery nor an evidentiary hearing is necessary at this time, the
Court is unable to conclude that the interests of justice require the appointment of
counsel. 18 U.S.C. § 3006A(a)(2)(B). Moreover, although there is some authority
for the proposition that “[c]ounsel may be appointed, in exceptional cases, for a
prisoner appearing pro se in a habeas action[]” even in the absence of discovery or
an evidentiary hearing, Lemeshko v. Wrona, 325 F. Supp. 2d 778, 788 (E.D. Mich.
2004) (citing Johnson v. Howard, 20 F. Supp. 2d 1128, 1129 (W.D. Mich. 1998)),
such exceptional circumstances have not been shown to exist in this case.
Therefore, the Court denies Petitioner’s request for the appointment of counsel.
II.

CONCLUSION AND ORDER

For the reasons set forth above, the Court DENIES Petitioner’s motions for
an evidentiary hearing (ECF No. 3), to compel compliance with a subpoena (ECF
No. 12), and for appointment of counsel (ECF No. 14), and GRANTS
Respondent’s motion to quash the subpoena and for immediate consideration (ECF
No. 9). Should the Court determine, upon further review of this case, that an
evidentiary hearing, supplementation of the existing record, or the appointment of

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counsel is required for the proper resolution of this matter, it will enter an
appropriate order. As such, neither Petitioner nor Respondent needs to file
additional motions as to such matters.
IT IS SO ORDERED.

Dated: March 3, 2014

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Lorenzo Townsend, # 201112
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
John S. Pallas, A.A.G.
Laura Moody, A.A.G.

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