McQueen v. McCullick
Filing
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OPINION and ORDER Denying Petitioner's 12 MOTION for Evidentiary Hearing and 13 MOTION to Compel. Signed by District Judge Laurie J. Michelson. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK MCQUEEN,
Petitioner,
v.
Case No. 17-11967
Honorable Laurie J. Michelson
Magistrate Judge Elizabeth A. Stafford
MARK MCCULLICK,
Respondent.
OPINION AND ORDER
DENYING PETITIONER’S MOTION FOR EVIDENTIARY HEARING [12]
AND MOTION TO COMPEL [13]
Mark McQueen currently has a petition for a writ of habeas corpus pending before the
Court. (R. 1.) The Warden has answered (R. 7), docketed the Rule 5 materials (R. 8), and McQueen
replied (R. 14). Now, McQueen asks the Court to hold an evidentiary hearing “if the Court
determines [one] is necessary to properly dispose of the claims raised in this habeas proceeding.”
(R. 12, PageID.1677.) And he moves to compel the Warden to docket a set of “materials” he says
are “relevant to the issues raised in this habeas corpus proceeding.” (R. 13, PageID.1678.)
Turning first to the request for an evidentiary hearing, McQueen’s motion is premature. On
habeas corpus review, the findings and decisions of a state trial court are the “main event.”
Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Accordingly, the Antiterrorism and Effective Death
Penalty Act (AEDPA) tightly restricts a federal court’s ability to review a decision of a state trial
court. See Pinholster, 563 U.S. at 181; 28 U.S.C. § 2254(d). And where AEDPA applies, this
Court’s review is limited solely to “the record that was before the state court that adjudicated” the
habeas corpus claims “on the merits.” Pinholster, 563 U.S. at 181. But the Court has yet to
determine whether AEDPA applies to McQueen’s claims. And until the Court determines whether
AEDPA applies to his claims, the Court cannot expand the record by way of an evidentiary hearing.
See Pinholster, 563 U.S. at 185–86. So, for now, the Court must decline McQueen’s invitation to
hold an evidentiary hearing.
As for McQueen’s motion to compel, the Court wishes to know more. In part, McQueen
requests a transcript of a preliminary examination he says was held on March 24, 2010. Although
the Rule 5 materials contain a transcript for an April 2010 preliminary examination (R. 8-4), there
is nothing in the record about a March 24, 2010 preliminary examination. And according to Rule
5 of the Rules Governing Section 2254 Cases, the Warden must either provide all transcripts it
deems relevant or, if a relevant transcript is unavailable, indicate why that particular transcript is
unavailable. However, the Warden has not responded to McQueen’s motion. So the Court does
not know whether the Warden did not include a March 24 transcript because it deems the
proceeding not relevant to McQueen’s claims, or because the transcript is somehow unavailable.
So, as required by Rule 5, the Court respectfully orders the Warden to, within 14 days, either
explain why the March 24, 2010 transcript is not included or docket the transcript.
As for the remainder of his motion to compel, McQueen requests police reports and a
recording of a phone call. At this point it is not clear whether the Court needs these materials and
less clear whether McQueen is even entitled to them. So the Court will deny the portion of
McQueen’s motion compelling the production of police reports and a tape recording. Nevertheless,
upon review of the record and pleadings, the Court may reconsider the requests, so the denial is
without prejudice to refiling.
In sum, McQueen’s motion for an evidentiary hearing (R. 12) is DENIED WITHOUT
PREJUDICE. And his motion to compel is GRANTED to the extent he requests a transcript from
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a March 24, 2010 preliminary examination and DENIED WITHOUT PREJUDICE to the extent
he requests police reports and a tape recording.
SO ORDERED.
Dated: September 20, 2018
s/Laurie J. Michelson
U. S. DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the
attorneys and/or parties of record by electronic means or U.S. Mail on September 20, 2018.
+
s/Teresa McGovern
Case Manager Generalist
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