In Re Louie L. Wainwright , 678 F.2d 951 ( 1982 )

TJOFLAT, Circuit Judge:

Petitioner Louie L. Wainwright, in his capacity as Secretary of the Department of Corrections of the State of Florida, asks this court to issue a writ of prohibition to prevent the district court from conducting an evidentiary hearing in a habeas corpus proceeding pending before that court. We decline to issue the writ.

Petitioner Wainwright is the respondent in the habeas proceeding in which Gary Eldon Alvord seeks to have his murder conviction, for which he was sentenced to death, declared unconstitutional. After considering the moving papers filed by both parties, the district court, over Wainwright’s objection, ordered an evidentiary hearing limited to consideration of two of Alvord’s habeas claims: ineffective assistance of counsel and denial of adequate psychiatric examination. Wainwright moved the district court to certify an interlocutory appeal of its decision to conduct the eviden-tiary hearing, but the court refused. He then applied to this court for a writ of prohibition, seeking to prevent the district court from holding a hearing on Alvord’s claims.

Relying on Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), Wainwright argues that the district court erred in granting an evidentiary hearing “without first concluding that the state proceedings wherein Alvord first aired his claims did not constitute full and fair hearings.” This contention misses the mark. The Supreme Court in Mata interpreted section 2254(d) of the habeas statute,¹ which requires the federal habeas court to presume that written state court factual findings are correct unless one of eight enumerated exceptions pertains. The Mata Court held that when a federal court grants a habeas writ it must expressly articulate the reasoning which led it to conclude that one of section 2254(d)’s exceptions is applicable. 449 U.S. at 551, 101 S.Ct. at 771. Mata in no way speaks to the issues of if and when a federal habeas court may hold an eviden-tiary hearing. Moreover, section 2254(d) contemplates that in some cases the federal court will hold an evidentiary hearing for the purpose of determining whether to apply the presumption of correctness to the state court findings;² if the court does apply the presumption, “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d) (1976). Thus, neither Mata nor section 2254(d) can be read to require the federal habeas court to determine section 2254(d)’s applicability prior to holding an evidentiary hearing on the habe-as claims. See generally, Washington v. Watkins, 655 F.2d 1346, 1352-54 (5th Cir. 1981).³

Putting aside the merits of Wainwright’s claim, the issue before us is not merely whether the district court erred in ordering the evidentiary hearing, but whether we should grant a writ of prohibition to prevent such a hearing. Writs of prohibition are not issued unless the petitioner shows “exceptional circumstances amounting to a judicial ‘usurpation of power.’ ” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (citation omitted). As the former Fifth Circuit stated in Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965):

Writs of ... Prohibition are granted sparingly. Such writs are “reserved for really extraordinary causes” ... and should be issued only when the right to relief is “clear and undisputable.” ... They are not to be used as a substitute for an appeal, or to “control the decision of the trial court” in discretionary matters. ...

(citations omitted).

All the district court has done in this case is to schedule an evidentiary hearing. Wainwright has made no showing of “judicial usurpation of power” or of prejudice to his position as a result of the district court’s action. Further, he has not advanced a single reason why any complaints he may have with the district court’s handling of the habeas claim cannot be addressed through the regular appeals process. Manifestly, Wainwright has not demonstrated any “exceptional circumstances” requiring us to issue a writ of prohibition.

PETITION DENIED.

1 . 28 U.S.C. § 2254(d) (1976), provides:

(d) In any proceeding instituted in a Federal court by an application for a writ of habe-as corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

2 . “And in an evidentiary hearing in the proceeding in the Federal court ...” 28 U.S.C. § 2254(d) (1976) (emphasis supplied).

3 . Our resolution of this case does not require us to reach the issue of whether § 2254(d) is even applicable to habeas claims alleging ineffective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Washington v. Watkins, 655 F.2d 1346, 1351-54 (5th Cir. 1981).