Opinion

Brown v. LeBlanc

Court
District Court, E.D. Louisiana
Filed
Aug 10, 2020
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JARVIS BROWN CIVIL ACTION

VERSUS NO. 20-0623

JAMES LEBLANC, ET AL. SECTION “A”(4)

ORDER AND REASONS

Before the Court is petitioner Jarvis Brown’s Petition for Writ of Habeas Corpus Ad

Testificandum (Rec. Doc. No. 14). Brown requests that the Court issue an order to have the

respondent transfer him from his current location to the Orleans Justice Center and produce him

for an evidentiary hearing before this Court in connection with his 28 U.S.C. § 2254 petition. The

Court, however, has not scheduled an evidentiary hearing in this case, and Brown’s request is at

best premature.

An evidentiary hearing is not available to a § 2254 petitioner unless the petition meets the

limited criteria set forth in 28 U.S.C. § 2254(e)(2).1 See Norman v. Stephens, 817 F.3d 226, 234

(5th Cir. 2016). On initial review, Brown’s claims are not of the types that would warrant an

evidentiary hearing under the statute.

In addition, the respondents have not yet filed an opposition response to Brown’s petition

which at this time is due on September 9, 2020. Based on the limited record before the Court,

128 U.S.C. § 2254(e)(2) provides as follows:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court

shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of

due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence

that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the

underlying offense.

including the nature of the claims asserted by Brown, it does not appear that an evidentiary hearing

will be necessary in this case or that Brown’s claims cannot be resolved on the pleadings and

records.” Accordingly,

IT IS ORDERED that Brown’s Petition for Writ of Habeas Corpus Ad Testificandum

(Rec. Doc. No. 14) is DENIED.

New Orleans, Louisiana this 10th day of August, 2020.

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KAREN WELLS RQBY /

CHIEF UNITED STATES MAGISTRATE JUDGE

Should he be inclined to ask, Brown also would have no right to appointment of counsel to assist with this

non-capital federal habeas proceeding, unless the court later finds the evidentiary is necessary. See Rule 8(c), Rules

Governing § 2254 Cases; Urias v. Thaler, 455 F. App’x 522, 523 (Sth Cir. 2011); see also, Pennsylvania v. Finley,

481 U.S. 551, 555 (1987); see also Wright v. West, 505 U.S. 277, 293 (1992) (no constitutional right to counsel in

habeas corpus proceedings); Ortloff v. Fleming, 88 F. App’x 715, 717 (Sth Cir. 2004). In addition, “[i]f the matter

can be resolved on the basis of the record and the pleadings submitted by the parties, the interests of justice do not

require the appointment of counsel” under 18 U.S.C. § 3006A or 28 U.S.C. § 1915(e)(1). Jackson v. Warden, West

Monroe City Jail, No. 06-1425, 2006 WL 4041524, at *2 (citing United States v. Vasquez, 7 F.3d 81 (Sth Cir. 1993)).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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