Simnick v. Gage

Filing 25

MEMORANDUM AND ORDER - Petitioner's Motion for Evidentiary Hearing (Filing No. 19 ) is denied without prejudice. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN A. SIMNICK,
Petitioner,
v.
MICHAEL L. KENNEY,
Respondent.

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CASE NO. 8:13CV221

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Motion for Evidentiary Hearing. (Filing
No. 19.) 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 Petition for Writ of Habeas Corpus,
Respondent’s 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.
IT IS THEREFORE ORDERED THAT: Petitioner’s Motion for Evidentiary Hearing
(Filing No. 19) is denied without prejudice.
DATED this 5th day of May, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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