Lyons-Bey v. Campbell

Filing 12

OPINION AND ORDER denying 4 Motion for Evidentiary Hearing; denying 5 Motion for Discovery; denying 6 Motion for Bond; denying 7 Motion to Expedite; denying 8 Motion to Remand. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID MAURICE LYONS-BEY,
Case No. 5:16-CV-13797
HON. JOHN CORBETT O’MEARA
UNITED STATES DISTRICT COURT

Petitioner,
v.
SHERMAN CAMPBELL,
Respondent,
_______________________________/

OPINION AND ORDER DENYING THE MOTIONS FOR AN EVIDENTIARY
HEARING, FOR DISCOVERY, FOR BOND PENDING APPEAL, TO EXPEDITE
REQUEST FOR AN EVIDENTIARY HEARING, AND TO REMAND TO THE
STATE COURT FOR A NEW APPEAL
David Maurice Lyons-Bey, (“petitioner), filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for assault with intent to do
great bodily harm less than murder, conspiracy to commit assault with intent to do great
bodily harm less than murder, armed robbery, and conspiracy to commit armed robbery.
On October 26, 2016, Magistrate Judge R. Steven Whalen signed an Order of Responsive
Pleading, requiring the respondent to file an answer by May 1, 2017. Before the Court
are petitioner’s motions for an evidentiary hearing, for discovery, for bond pending
appeal, to expedite his request for an evidentiary hearing, and to remand to the state court
for a new appeal. For the reasons stated below, the motions are denied without prejudice.

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1. The motion for an evidentiary hearing.
If a habeas 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 a review of those proceedings and of the expanded record, if any, determine
whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not
required, the judge shall make such disposition of the petition as justice shall require. 28
U.S.C. foll. § 2254, Rule 8(a); Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich.
1999).
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 (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. If 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. See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir.
2001).
The motion for an evidentiary hearing will be denied without prejudice because the
Court has not yet received an answer or the state court record from respondent. Without
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these materials, the Court is unable to determine whether an evidentiary hearing on
petitioner’s claims is needed. Following receipt of these materials, the Court will then
determine whether an evidentiary hearing is necessary to resolve petitioner’s claims.
2. The motion for discovery.
“A habeas petitioner, unlike the usual civil litigant, is not entitled to discovery as a
matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, a
habeas petitioner is entitled to discovery only if the district judge “in the exercise of his
discretion and for good cause shown grants leave” to conduct discovery. Rule 6
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. §
2254. To establish “good cause” for discovery, a habeas petitioner must establish that the
requested discovery will develop facts which will enable him or her to demonstrate that
he or she is entitled to habeas relief. See Bracy, 520 U.S. at 908-09. The burden is on the
petitioner to establish the materiality of the requested discovery. See Stanford v. Parker,
266 F. 3d 442, 460 (6th Cir. 2001). A further limitation on discovery is the case of
Cullen v. Pinholster, 563 U.S. 170, 181 (2011), in which the Supreme Court held that
under the clear language of the 28 U.S.C. § 2254(d), a district court is precluded from
considering new evidence when reviewing a petition under § 2254(d) where the
petitioner’s claims were adjudicated on the merits in state court proceedings.
Until a respondent files an answer to the habeas petition, “it is impossible to
evaluate what, if any, discovery is needed and whether the discovery is relevant and
appropriately narrow.” Gengler v. United States ex rel. Dept. of Defense & Navy, 463 F.
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Supp. 2d 1085, 1114-15 (E.D. Cal. 2006); See also Shaw v. White, No. 2007 WL
2752372, * 3 (E.D. Mich. Sept. 21, 2007). In addition, none of the Rule 5 materials have
been received by the Court; “and receipt of those materials may obviate the need to order
discovery.” Shaw, No. 2007 WL 2752372, at * 3. Granting the discovery request at this
time would be premature. The motion for discovery is denied without prejudice. Id.
3. The motion for bond.
To receive bond pending a decision on the merits of a habeas corpus petition, a
petitioner must show a substantial claim of law based on the facts and exceptional
circumstances justifying special treatment in the interest of justice. Lee v. Jabe, 989 F.2d
869, 871 (6th Cir. 1993)(quoting Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)).
There will be few occasions where a habeas petitioner meets this standard. Dotson, 900 F.
2d at 79. Federal courts may grant bail when granting the writ. See Sizemore v. District
Court, 735 F. 2d 204, 208 (6th Cir. 1984). By implication, a federal court should not
grant bail under other circumstances. In light of the fact that petitioner failed to establish
at this time that he would prevail on the merits of his claims, he is not entitled to release
on bail. See e.g. Greenup v. Snyder, 57 F. App’x. 620, 621-22 (6th Cir. 2003).
4. The motion to expedite.
Petitioner requests an expedited hearing on his petition.
The Court’s order of responsive pleadings requires an answer to be filed by
respondent no later than May 1, 2017. At that time, the Court will consider and dispose
of the case as justice so requires. This Court has the discretion under the rules governing
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responses in habeas corpus cases to set a deadline for a response to a habeas petition.
Erwin v. Elo, 130 F. Supp. 2d 887, 891 (E.D. Mich. 2001); 28 U.S.C. § 2243.. As another
judge in this district has indicated: “There is no way a § 2254 case can be decided on a
petitioner’s submission only, and a court should not put itself in a position of considering
the petition without a response by the respondent.” Mahaday v. Cason, 222 F. Supp. 2d
918, 921 (E.D. Mich. 2002)(citing to Beall v. Cockrell, 174 F. Supp. 2d 512 (N.D. Tex.
2001)). Until the Court receives the respondent’s answer, it is not in a position to address
the merits of petitioner’s claims. Petitioner failed to show good cause to expedite a ruling
on his petition for habeas relief to the detriment of petitions filed prior to the filing of his
petition, because petitioner has shown no undue delay or that any delay had been or
would be highly prejudicial to him. See Castillo v. Pratt, 162 F. Supp. 2d 575, 576 (N.D.
Tex. 2001). Petitioner’s request and attack on his sentence “differs little from the vast
majority of habeas petitions” that are filed with the court. Id. Petitioner has shown
nothing which would separate his habeas application from the petitions that preceded it.
Id. Petitioner has failed to demonstrate that his petition has such merit that expedited
consideration is warranted. Castillo, 162 F. Supp. 2d 576.
5. The motion to remand.
Petitioner requests this Court to remand his case to the state courts for a new
appeal because he claims that appellate counsel was ineffective.
Petitioner does not raise an ineffective assistance of appellate counsel claim in his
actual petition. The petition for writ of habeas corpus, and not briefs or other documents,
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provides the basis for granting a writ of habeas corpus. See Scott v. Hopkins, 82 F. Supp.
2d 1039, 1050 (D. Neb. 1999). This Court declines to address any ineffective assistance
of counsel appellate counsel claim which has not been raised in the petition for writ of
habeas corpus. Scott, 82 F. Supp. 2d at 1050. The motion to remand is denied without
prejudice to petitioner moving to amend his petition to add an ineffective assistance of
appellate counsel claim.
IT IS HEREBY ORDERED that the motion for an evidentiary hearing [Dkt. # 4],
the motion for discovery [Dkt. # 5], the motion for bond [Dkt. # 6], the motion for an
expedited hearing, [Dkt. # 7], and the motion to remand to the state court for a new appeal
[Dkt. # 8] are DENIED WITHOUT PREJUDICE.

s/John Corbett O’Meara
United States District Judge

Date: October 27, 2016

I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, October 27, 2016, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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