Ildefonso v. Gage

Filing 52

MEMORANDUM AND ORDER that Petitioner's Motion for Evidentiary Hearing and Appointment of Counsel 51 is denied without prejudice to reassertion. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARLYN P. ILDEFONSO,
Petitioner,
v.
BRIAN GAGE, Warden,
Respondent.

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4:13CV3110

MEMORANDUM
AND ORDER

This matter is before the Court on Petitioner’s Motion for Evidentiary Hearing and
Appointment of Counsel (Filing No. 51). Rule 8(a) of the Rules Governing Section 2254
Cases in the United States District Courts states in pertinent part: “If the petition is not
dismissed, 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.” 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 claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). An
evidentiary hearing may be held when the habeas petition “alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002) (internal
quotation omitted).
Here, the Court has not yet reviewed the Amended Petition for Writ of Habeas
Corpus, Respondent’s Amended Answer, or the State Court Records. Without reviewing
these materials, the Court is unable to determine whether an evidentiary hearing on
Petitioner’s claims is necessary. Accordingly, the Court will deny Petitioner’s Motion

without prejudice. The Court will reconsider Petitioner’s Motion if, following review of the
record in this matter, the Court determines that an evidentiary hearing is necessary. The
Court will appoint counsel to represent Petitioner if it determines that an evidentiary hearing
is warranted. See Rule 8(c) of the Rules Governing Section 2254 Cases in the United
States District Courts (requiring appointment of counsel if an evidentiary hearing is
warranted). Accordingly,
IT IS ORDERED: Petitioner’s Motion for Evidentiary Hearing and Appointment of
Counsel (Filing No. 51) is denied without prejudice to reassertion.

DATED this 1st day of December, 2014.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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