McDavid v. Allison
- Proceeding
- original
- Outcome
- other — 23 Dated: August 16, 2023 LY United States Magistrate Judge 27 28
- Area
- civil
- Panel
- Lupe Rodriguez (author)
Analysis
The court considered a pro se habeas petitioner's motion to appoint a firearms expert witness for a potential evidentiary hearing. The court denied the motion without prejudice, finding it premature because it had not yet determined whether an evidentiary hearing was warranted.
| What the court decided | The model |
|---|---|
Motion for Appointment of Expert Witness denied without prejudice“The Court therefore DENIES without prejudice Petitioner’s Motion for Appointment of Expert Witness [ECF No. 32].” | agree with court The court correctly applied the principle that expert appointment is discretionary and often contingent on the necessity of the testimony. By denying the motion without prejudice on the grounds that the need for an evidentiary hearing had not yet been established, the court preserved the petitioner's right to refile if a hearing is later ordered. This is a standard procedural management decision in habeas litigation. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory framework for expert appointment in habeas cases (CJA vs. Rule 706) and applies the logical prerequisite that expert testimony is only relevant if an evidentiary hearing is actually held. The denial without prejudice is the appropriate procedural mechanism to handle a motion filed before the underlying threshold issue (the hearing) is resolved.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WELDON K. MCDAVID, JR., Case No.: 22cv751-GPC(LR)
12 Petitioner, ORDER DENYING WITHOUT 13 v. PREJUDICE PETITIONER’S MOTION FOR APPOINTMENT OF 14 KATHLEEN ALLISON, et al., EXPERT WITNESS 15 Respondents. [ECF NO. 32] 16 17 18 Pending before the Court is Petitioner’s Motion for Appointment of Expert 19 Witness [ECF No. 32]. Petitioner states that a retired FBI Agent, Benedict Tisa, has 20 “knowledge of external ballistics and projectile trajectories” and “would be invaluable to 21 the court in determining the facts of this case.” (Id.) Petitioner moves the Court to 22 appoint Mr. Tisa as a firearms expert witness to testify at Petitioner’s evidentiary hearing. 23 (Id.) 24 A district court has discretion to appoint an expert witness either by a party’s 25 motion or by its own motion. Fed. R. Evid. 706(a). However, “[Federal Rule of Civil 26 Procedure] 706 is not a means to avoid the in forma pauperis statute [28 U.S.C. § 1915] 27 and its prohibition against using public funds to pay for the expenses of witnesses[.]” 28 Matheis v. Godinez, Case No.: 3:20-cv-2100-GPC-AHG, 2022 WL 782384, at *3 (S.D. 1 || Cal. Mar. 14, 2022) (citing 28 U.S.C. § 1915). Further, the Criminal Justice Act provides 2 || for representation of indigent defendants, and authorizes a district court to appoint 3 || counsel to represent a financially eligible habeas petitioner when “the court determines 4 || that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). “Counsel for a 5 || person who is financially unable to obtain investigative, expert, or other services 6 ||necessary for adequate representation may request them in an ex parte application.” Id. at 7 || § 3006A(e)(1); see also Edwards v. Miller, Civil No. 14-0429 JAH (KSC), 2015 WL 8 || 10963718, at *26 (S.D. Cal. Apr. 1, 2015) Gnternal quotation marks and citations 9 omitted) (“The plain language of the statute necessarily contemplates that counsel is the 10 || person who may request funding for . . . services, and that, in turn, suggests that counsel 11 || must first have been appointed under § 3006A before the court will consider authorizing 12 || funding for investigative services.”). 13 The Court notes that on May 24, 2022, Petitioner, a state prisoner proceeding pro 14 || se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 15 || 1.) On September 1, 2022, Respondent filed an Answer, and on December 6, 2022, 16 || Petitioner filed a Traverse. (ECF Nos. 18 & 30.) The Court has not yet determined 17 || whether an evidentiary hearing is warranted. (See Docket.) 18 The Court finds that the appointment of a ballistics expert at this stage of the 19 || proceedings is premature because the Court has not yet determined whether an 20 || evidentiary hearing is warranted in this case. The Court therefore DENIES without 21 || prejudice Petitioner’s Motion for Appointment of Expert Witness [ECF No. 32]. 22 IT IS SO ORDERED. 23 Dated: August 16, 2023 LY 25 Honorable Lupe Rodriguez, Jr. United States Magistrate Judge 27 28