Nickelson v. Warden, Chillicothe Correctional Institution
Filing
36
DECISION AND ORDER DENYING 28 PETITIONER'S MOTION FOR EVIDENTIARY HEARING. Signed by Magistrate Judge Michael R Merz on 12/17/11. (cib1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
LE SHAWN NICKELSON,
:
Petitioner,
Case No. 1:11-cv-334
:
District Judge S. Arthur Spiegel
Magistrate Judge Michael R. Merz
-vsWarden, Chillicothe Correctional Institution,
:
Respondent.
DECISION AND ORDER DENYING PETITIONER’S MOTION
FOR EVIDENTIARY HEARING
This habeas corpus case is before the Court on Petitioner’s Motion for Evidentiary Hearing
(Doc. No. 28).
Petitioner asserts that there is evidence dehors the record which he wishes to introduce at an
evidentiary hearing, but the documents attached to his Motion are already part of the record, with the
possible exception of circles drawn on dates on the copies attached. Assuming Petitioner made the
circles to emphasize some point in his argument, he can make that argument without an evidentiary
hearing.
In any event, Petitioner has not shown his entitlement to an evidentiary hearing under current
law. Virtually all of the case authority he cites was decided before enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the “AEDPA”). That
statute severely limits prior authority for evidentiary hearings in federal habeas cases.
Section 2254(e)(2) sets forth certain preconditions to obtaining an
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evidentiary hearing in a habeas proceeding where a petitioner has
"failed to develop the factual basis of a claim in State court
proceedings." The Supreme Court has held that "failed" within the
meaning of § 2254(e)(2) refers to "a lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner's counsel." Williams
v. Taylor, 529 U.S. 420, 432, 120 S. Ct. 1479, 146 L. Ed. 2d 435
(2000).
[Even if a petitioner] overcomes the initial statutory hurdle to
obtaining a hearing, "the fact that [a petitioner] is not disqualified from
receiving an evidentiary hearing under § 2254(e)(2) does not entitle
him to one." Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003).
The Supreme Court recently explained that, "[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition's factual
allegations, which, if true, would entitle the applicant to federal habeas
relief." Schriro v. Landrigan, 127 S. Ct. 1933, 1940, 167 L. Ed. 2d 836
(2007); see also Bowling, 344 F.3d at 512 (determining that the district
court's denial of an evidentiary hearing did not amount to an abuse of
discretion after examining the following factors: whether the petitioner
"alleges sufficient grounds for release," whether "relevant facts are in
dispute," and whether the "state courts . . . h[e]ld a full and fair
evidentiary hearing"). Furthermore, "[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." Schriro, 127 S. Ct. at
1940.
Getsy v. Mitchell, 495 F.3d 295, 310-311 (6th Cir. 2007)(en banc). A further limitation was imposed
in Cullen v. Pinholster, 131 S. Ct. 1388, 1400-01, 179 L. Ed. 2d 557 (2011), which has been discussed
in previous filings.
Because Petitioner has not shown his entitlement to an evidentiary hearing and because the
documents he seeks to introduce at such a hearing are already part of the record, the Motion is denied.
December 17, 2011.
s/ Michael R. Merz
United States Magistrate Judge
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