United States District Court, E.D. Louisiana
ORDER AND REASONS
OF MOTIONS AND RELIEF SOUGHT
September 1, 2017 this Court ordered Petitioners Len Davis
and Paul Hardy (collectively, “Petitioners”) to
file supplemental memoranda regarding which of their
§2255 claims might require evidentiary hearing (Rec.
Doc. 2449). Before the Court is petitioner Hardy's
“Supplemental Memorandum Regarding Evidentiary
Claims” (Rec. Doc. 2462), petitioner Davis'
“Memorandum in Support of Granting Evidentiary
Hearing” (Rec. Doc. 2463”), and the
Government's “Response to Paul Hardy's and Len
Davis's Requests for Evidentiary Hearing” (Rec.
Doc. 2465). For the reasons outlined below, IT IS
ORDERED that Petitioners' requests for
evidentiary hearing is DENIED.
conjunction with their § 2255 motions, Petitioners seek
evidentiary hearing on particular claims therein. 28 U.S.C.
§ 2255 provides that:
[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.
28 U.S.C.A. § 2255 (2008).
where the motion, files, and records of the case conclusively
show that the prisoner is entitled to no relief, the Court
may deny a §2255 motion without an evidentiary hearing.
U.S. v. Auten, 632 F.2d 478 (5th Cir.1980). A
district court's denial of an evidentiary hearing on a
§ 2255 is reviewed for abuse of discretion. See
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992). To establish an “abuse of discretion, ”
Petitioners must present “independent indicia of the
likely merit of allegations.” United States v.
Cavitt, 550 F.3d 430, 442 (5th Cir. 2008).
discussed, infra, Petitioners fail to meet their
burden of presenting “independent indicia” of the
likely merit of their claims. Even after this Court allowed
for additional exchange of discovery (Rec. Doc. 2249),
Petitioners present no new facts or evidence in support of
their conclusory claims. Petitioners' mere recitation of
incredible conclusions does not warrant evidentiary hearing,
and this issue will be “heard” on the briefing
already submitted to the Court. See United States v.
McGill, 11 F.3d 223, 225 (1st Cir. 1993)(“In most
situations, motions can be “heard” effectively on
the papers, with the parties submitting evidentiary proffers
by means of affidavits, documentary exhibits, and the
before the Court is Len Davis' “Motion to Vacate
under 28 U.S.C. § 2255” (Rec. Doc. 2265), the
“Government's Response to Guilt Related Issues
Under 28 U.S.C. § 2255 for Collateral Relief”
(Rec. Doc. 2265), Paul Hardy's “First Motion to
Vacate Under 28 U.S.C. § 2255” (Rec. Doc. 2378),
and the “Government's Opposition to Hardy's
Motion for Collateral Relief Under 28 U.S.C §
2255” (Rec. Doc. 2378). For the reasons mentioned
IS FURTHER ORDERED that Petitioners claims are
DISMISSED, along with all other pending
AND PROCEDURAL HISTORY
Third Superseding Indictment charged Len Davis and Paul Hardy
with offenses relating to the murder of Kim Marie Groves
(Rec. Doc. 187). The first count charged petitioners with a
conspiracy to violate Groves' constitutionally protected
right to liberty by the use of excessive force, while acting
under the color of the law, which resulted in her death (Rec.
Doc. 187). The second count alleged that petitioners'
actions substantively constituted the deprivation of rights
under the color of law pursuant to 18 U.S.C § 242 (Rec.
Doc. 187). The third and final count of the indictment
alleged that petitioners willfully killed Groves to prevent
communication to A jury was empaneled and petitioners'
trial started on April 8, 1996 (Rec. Doc. 465). On April 24,
1996 the jury found petitioner Davis and petitioner Hardy
guilty as to all three counts (Rec. Doc. 524).
November 6, 1996 petitioner Davis received concurrent
sentences for all three counts of the Third Superseding
Indictment (Rec. Doc. 631). Davis filed a timely Notice of
Appeal and the Fifth Circuit Court of Appeals affirmed the
district court's decision as to Count 1 and 2 and
reversed and vacated the sentence as to Count 3 (Rec. Doc.
714). Davis was resentenced to two concurrent sentences as to
Counts 1 and 2 (Rec. Doc. 1530). Davis filed a timely Notice
of Appeal. On September 2, 2010 the Fifth Circuit affirmed
his sentence (Rec. Docs. 1542 and 2165). Davis timely filed a
Petition for a Writ of Certiorari to the Supreme Court of the
United States, which was denied on March 22, 2011 (Rec. Doc.
November 6, 1996 petitioner Hardy received concurrent
sentences on all three counts (Rec. Doc. 630). Petitioner
Hardy filed a timely Notice of Appeal (Rec. Doc. 633). The
Fifth Circuit affirmed his convictions on Counts 1 and 2 but
reversed his conviction on Count 3. The case was remanded to
back to the district court for resentencing (Rec. Doc. 715).
In December 2011, petitioner Hardy was resentenced on Counts
1 and 2 and received concurrent terms of life imprisonment, 5
years supervised release, $3, 593.05 restitution, and a $200
Mandatory Special Assessment Fee (Rec. Doc. 2257). On
December 29, 2011 petitioner Hardy timely filed a Notice of
Appeal and on January 3, 2013 the Fifth Circuit Court of
Appeals affirmed his sentences on Counts 1 and 2 (Rec. Docs.
2259 and 2316). On April 3, 2013 Hardy timely filed a