Wardrip v. Director TDCJ-CIDMOTION for HearingN.D. Tex.June 15, 2011____________________________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION NO. 7:01-CV-0247-CR FARYION EDWARD WARDRIP, Plaintiff/Appellee, VS. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Defendant/Appellant. __________________________________________________________ MOTION FOR EVIDENTIARY HEARING ___________________________________________________________ TO THE HONORABLE PRESIDING JUDGE: NOW COMES FARYION EDWARD WARDRIP, Applicant, and files this Motion for Evidentiary Hearing and would show the Court the following: I. Defendant Wardrip formally requests an evidentiary hearing on issues raised in his writ and requests the opportunity to present evidence in support of his claims. -1- Case 7:01-cv-00247-G -BF Document 125 Filed 06/15/11 Page 1 of 3 PageID 1427 II. On June 9, 2011, the Fifth Court of Appeals heard oral argument in this case. The Court of Appeals was particularly interested in the application of Cullen v. Pinholster to this case and required both sides to present additional briefing on the issues. The bulk of oral argument centered on Cullen v. Pinholster’s application and effect on this case. Wardrip requested a remand to permit Judge Stickney to provide appropriate clarification for the basis of his initial Findings and Recommendations, in light of Cullen. Wardrip would respectfully request the opportunity for a hearing on this same issue to present this Court with evidence and argument as to why Cullen v. Pinholster does not disturb this Court’s finding of constitutionally ineffective assistance of counsel and recommended habeas relief. If the Court is not inclined to provide the parties a hearing, Wardrip alternatively requests the opportunity to present written briefs on the potential application of Cullen v. Pinholster. Due to the significant stakes in this matter, Wardrip prays that this Court will permit additional argument and/or briefing on his behalf. Finally, because two days of evidentiary hearings were conducted by the Honorable Magistrate Judge Paul Stickney, Wardrip respectfully requests that this Court return the matter back to Judge Stickney as he is the only individual that can address the true basis of his original Findings and Recommendations and whether such findings were based on items that transcend the state record. While the district Court conducted de novo review of Judge Stickney’s findings, the Disrict Court is not in a position to know with clarity the full basis of Judge Stickney’s recommendation. Accordingly, Wardrip respectfully requests that the case be returned to Judge Stickney for further hearing and/or briefing on the applicability of Cullen v. Pinholster to this Court’s decision. -2- Case 7:01-cv-00247-G -BF Document 125 Filed 06/15/11 Page 2 of 3 PageID 1428 FOR THE ABOVE REASONS, Applicant Carpenter respectfully requests that this Court grant this motion and that this Court set an evidentiary hearing on Applicant’s application for a writ of habeas corpus. Respectfully submitted, _____________________________ BRUCE ANTON Bar Card Number 01274700 Sorrels, Udashen & Anton 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214) 468-8100 (214) 468-8104 ba@sualaw.com Attorney for Applicant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above Motion for Evidentiary Hearing was served on the 15 day of June 2011, on Katherine D. Hayes, and Georgette Patrice Oden, Office ofth the Attorney General, by the e-mail system of the United States District Court ECFS . ____________________________________ BRUCE ANTON -3- Case 7:01-cv-00247-G -BF Document 125 Filed 06/15/11 Page 3 of 3 PageID 1429
