Raymond Twyford v. Tim Shoop

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0196p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
RAYMOND A. TWYFORD, III,
│
Petitioner-Appellee, │
> No. 20-3346
│
v. │
│
TIM SHOOP, Warden, │
Respondent-Appellant. │
┘

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:03-cv-00906—Algenon L. Marbley, Chief District Judge.

Argued: April 8, 2021

Decided and Filed: August 26, 2021

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin
Falls, Ohio, for Appellee. ON BRIEF: Zachery P. Keller, Benjamin M. Flowers, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Michael J. Benza, LAW
OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, Alan C. Rossman, Sharon A.
Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court in which COLE, J., joined.
BATCHELDER, J. (pp. 14–16), delivered a separate dissenting opinion.
 No. 20-3346 Twyford v. Shoop Page 2

_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. Tim Shoop, the warden of the Chillicothe
Correctional Institution, appeals from the district court’s order (“transport order”) requiring the
warden to transport Raymond Twyford, an Ohio death-row inmate, to The Ohio State University
Wexner Medical Center, affiliated with the Ohio Department of Rehabilitation and Correction,
for neurological imaging (a CT/FDG-PET scan) in support of his petition for a writ of habeas
corpus. The district court issued the transport order under the All Writs Act, 28 U.S.C. § 1651,
in aid of its jurisdiction over Twyford’s habeas petition. For the following reasons, we hold that
we have jurisdiction under the collateral-order doctrine to review the warden’s appeal, and we
AFFIRM the district court’s transport order.

I. BACKGROUND

An Ohio jury convicted Twyford of aggravated murder and sentenced him to death in
1993.1 In January 2003, Twyford filed a federal habeas petition raising twenty-two claims for
relief. R. 13 (Pet. for Writ of Habeas Corpus) (Page ID #2–205). The district court stayed
Twyford’s case pending completion of litigation regarding his state application to reopen his
direct appeal. R. 38 (12/30/04 Order) (Page ID #379–85). After the Ohio Supreme Court
affirmed the denial of Twyford’s application to reopen his direct appeal, State v. Twyford,
833 N.E.2d 289, 290 (Ohio 2005), the district court returned Twyford’s case to the active docket,
see R. 49 (Oct. 2005 Status Rep.) (Page ID #408–09). In 2008, the Warden moved to dismiss
some of Twyford’s claims as procedurally defaulted. R. 78 (Warden’s Mot. to Dismiss
Procedurally Defaulted Claims) (Page ID #510–39). The district court granted the warden’s
motion in part. R. 93 (09/27/17 Order at 74) (Page ID #765).

This brings us to the subject of this appeal. In November 2018, Twyford requested leave
to file ex parte and under seal a motion to transport for medical testing, R. 101 (Mot. for Leave

1The facts and legal proceedings surrounding Twyford’s conviction and death sentence are detailed in State
v. Twyford, 763 N.E.2d 122, 128–31 (Ohio 2002).
 No. 20-3346 Twyford v. Shoop Page 3

to File Mot. to Transport Ex Parte) (Page ID #6998–7003), which the district court denied in
light of the need for transparency, R. 105 (03/15/19 Order at 3–4) (Page ID #7017–18). Twyford
then filed a motion to transport for neurological imaging. Twyford noted that he may have
neurological problems due to childhood physical abuse, alcohol and drug use, and a self-inflicted
gunshot wound to his head from a suicide attempt at age thirteen, which cost him his right eye
and left shrapnel remaining in his head. R. 106 (Mot. to Transport for Medical Testing at 3)
(Page ID #7021). In support of the motion, Twyford submitted a letter from Dr. Douglas
Scharre, a neurologist and the director of the Cognitive Neurology Division at The Ohio State
University Wexner Medical Center (“OSU”), which stated that Dr. Scharre had evaluated
Twyford, reviewed his medical records, and concluded that a CT scan and an FDG-PET scan
were necessary for him to evaluate Twyford fully. R. 106-2 (Letter from Dr. Scharre) (Page ID
#7088). Twyford requested that the warden transport him to OSU for this imaging because the
Chillicothe Correctional Institution, where Twyford is incarcerated, does not have the equipment
to perform this imaging.2 R. 106 (Mot. to Transport for Medical Testing at 4) (Page ID #7022).
He submits that the neurological imaging is necessary for his case because:

[g]iven the issues in Mr. Twyford’s petition relating to his family history, mental
health issues, and the impact of his suicide attempt (see Claims for Relief Nos.
1 (Ineffective Assistance of Counsel), 4 (Involuntary and Coerced Statement),
6 (Competency to Stand Trial), 16 (Ineffective Assistance of Counsel at
Mitigation), 17 (Ineffective Assistance of Expert), 18 (Denial of Right to Present
Mitigation Evidence)), it is plausible that the testing to be administered is likely to
reveal evidence in support of Mr. Twyford’s claims. Additionally, this
investigation could plausibly lead to the development of evidence and materials in
support for any challenges to the Warden’s claims of procedural default or
exhaustion.

Id. at 8 (Page ID #7026).

The warden opposed this motion on two grounds. R. 107 (03/28/19 Warden’s Opp. to
Mot.) (Page ID #7089–94). First, the warden contended that the district court has jurisdiction
under 28 U.S.C. § 2241 “to bring a prisoner to the place where the Court is convened in order to

2OSU has experience securely treating prisoners as OSU provides any needed emergency or inpatient care
and performs surgeries and advanced imaging for Ohio inmates. See Bureau of Medical Services (BOMS), Ohio
Dep’t of Rehab. & Corr., https://drc.ohio.gov/correctional-healthcare (last visited on Apr. 26, 2021).
 No. 20-3346 Twyford v. Shoop Page 4

facilitate its adjudication of a 2254 action,” but not to require that the state transport a prisoner to
an outside medical facility. Id. at 1–3 (Page ID #7089–91). Second, the warden argued that
Twyford was seeking new information that he did not present to the state courts and therefore
Cullen v. Pinholster, 563 U.S. 170 (2011), precluded the district court from considering the
results of any resultant neurological imaging. Id. at 3–5 (Page ID #7091–93).

The district court granted Twyford’s motion. R. 109 (03/19/20 Op. & Order) (Page ID
#7102–09). The district court found that it had jurisdiction under the All Writs Act to order the
warden to transport Twyford for neurological imaging because the results “may aide this Court
in the exercise of its congressionally mandated habeas review.” Id. at 6 (Page ID #7107).
It concluded that it was not “in a position at this stage of the proceedings to make a
determination as to whether or to what extent it would be precluded by Cullen v. Pinholster from
considering any evidence in connection with Dr. Scharre’s evaluation.” Id. at 7–8 (Page ID
#7108–09).

The warden timely appealed. R. 110 (Not. of Appeal) (Page ID #7110–11). The district
court granted the warden’s request for a stay pending our resolution of the warden’s appeal. R.
114 (05/04/2020 Order) (Page ID #7123–24).

II. JURSDICTION

Before reaching the merits of the warden’s appeal, we must first determine whether we
have jurisdiction over the appeal. The warden argues that we should exercise jurisdiction over
his interlocutory appeal either through the collateral-order doctrine or as a petition for a writ of
mandamus. We conclude that the warden’s appeal satisfies the collateral-order doctrine, so we
need not address the warden’s mandamus argument.

We have jurisdiction to review final decisions of the district courts, 28 U.S.C. § 1291,
and a narrow class of interlocutory and collateral orders, 28 U.S.C. § 1292; Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). To fall within the collateral-order doctrine, the
decision (1) must be “conclusive”; (2) must “resolve important questions separate from the
merits”; and (3) must be “effectively unreviewable on appeal from the final judgment in the
underlying action.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995). The Supreme
 No. 20-3346 Twyford v. Shoop Page 5

Court has recognized that in cases where it has permitted an interlocutory appeal, “some
particular value of a high order was marshaled in support of the interest in avoiding trial.” Will
v. Hallock, 546 U.S. 345, 352 (2006).

The transport order satisfies all three conditions. First, the transport order conclusively
determined that the State must transport Twyford to OSU for neurological imaging. Second,
whether the district court has the authority to order the transport of Twyford to OSU is unrelated
to the merits of Twyford’s habeas petition but implicates important issues of state sovereignty
and federalism. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714 (1996) (holding that an
order remanding on grounds of Burford abstention is an appealable collateral order because it
“conclusively determines an issue that is separate from the merits, namely, the question whether
the federal court should decline to exercise its jurisdiction in the interest of comity and
federalism”). Third, the transport order would be effectively unreviewable if we were to wait
until after the district court resolved Twyford’s habeas petition. At that stage, the State will have
already undertaken the burden, risk, and expense of transporting Twyford to OSU for
neurological imaging. Our conclusion that we have appellate jurisdiction over the warden’s
appeal is consistent with other circuits that have considered transport orders. Jones v. Lilly, 37
F.3d 964, 965–66 (3d Cir. 1994); Jackson v. Vasquez, 1 F.3d 885, 887–88 (9th Cir. 1993);
Ballard v. Spradley, 557 F.2d 476, 479 (5th Cir. 1977).

Twyford argues that the district court’s transport order does not involve a disputed
question. Rather, Twyford characterizes the transport order as “simply authoriz[ing] habeas
counsel to conduct their own independent investigation of Mr. Twyford’s case,” which is “no
more ‘disputed’ than an order appointing counsel under 18 U.S.C. § 3599(a)(2) or appointing an
investigator under § 3599(f).” Twyford’s Br. at 11. Twyford’s portrayal of the district court’s
transport order, however, glosses over the federalism concerns implicated by the transport order.
Twyford also contends that, if we were to take seriously the warden’s argument that this is a
discovery order in disguise, discovery orders generally are not appealable under the collateral-
order doctrine despite their irreversible burden, citing U.S. ex rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 444 F.3d 462, 472 (6th Cir. 2006) (collecting cases). Twyford’s Br. at 12–14.
Twyford is correct that mere expense and burden to a party do not necessitate immediate review.
 No. 20-3346 Twyford v. Shoop Page 6

In Will v. Hallock, the Supreme Court concluded that a district court ruling that would prevent a
party from avoiding the expense and burden of trial was not reviewable under the collateral-order
doctrine because the burden and expense of trial, absent “some particular value of a high order,”
did not require immediate appeal. 546 U.S. at 350–53. Here, however, the district court’s
transport order implicates a “particular value of a high order,” namely a federal court’s authority
to compel state action.

We therefore have appellate jurisdiction to review the district court’s transport order
under the collateral-order doctrine. The district court had jurisdiction over Twyford’s habeas
petition under 28 U.S.C. §§ 2241 and 2254.

III. ANALYSIS

The warden argues that the district court did not have authority under the All Writs Act to
issue the transport order because the order is inconsistent with statutes and the common-law
understanding of habeas corpus. The warden also claims that the transport order is not
“necessary or appropriate” in Twyford’s case because Twyford has not shown that results of the
neurological imaging would be relevant to or admissible in his habeas proceeding. We conclude
that the district court properly exercised its authority under the All Writs Act to issue the
transport order in aid of its jurisdiction over Twyford’s habeas petition.3

The All Writs Act states that courts “may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651. The Act is not an independent source of jurisdiction. See United States v. Denedo,
556 U.S. 904, 911 (2009). Rather, the Act serves to “fill[] the interstices of federal judicial
power when those gaps threatened to thwart the otherwise proper exercise of federal courts’

3In his brief, Twyford appears to argue that the district court had authority to issue the order under
18 U.S.C. § 3599(f), which provides for appointed counsel and investigative services in capital habeas proceedings.
Twyford’s Br. at 22–27. The district court, however, based the transport order on its jurisdiction over Twyford’s
habeas petition. Further, § 3599(f) is not an independent source of jurisdiction. The warden argues in his reply brief
and at oral argument that Twyford has abandoned the district court’s reasoning. Warden’s Reply Br. at 14–15. At
oral argument, Twyford’s counsel clarified that he is arguing that the district court’s order is based on § 3599(f) and
the district court’s habeas jurisdiction. We have rejected the argument that appellees who fail to raise an argument
on appeal waive that argument, for we “can affirm the district court on any basis supported by the record.” Leary v.
Daeschner, 228 F.3d 729, 741 n.7 (6th Cir. 2000). We consider the arguments included in the appellate briefs as
well as the basis of the district court’s order.
 No. 20-3346 Twyford v. Shoop Page 7

jurisdiction.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41 (1985). As the text
of § 1651 states, the district court’s order must be “agreeable to the usages and principles of
law.” “In determining what auxiliary writs are ‘agreeable to the usages and principles of law,’
we look first to the common law.” United States v. Hayman, 342 U.S. 205, 221 n.35 (1952).
The Supreme Court has cautioned that “[w]here a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Penn. Bureau of
Corr., 474 U.S. at 43. The Act “does not authorize [federal courts] to issue ad hoc writs
whenever compliance with statutory procedures appears inconvenient or less appropriate.” Id.
Even when no statute seemingly precludes the district court’s action, we consider whether the
action is “consistent with the intent of Congress.” United States v. New York Tel. Co., 434 U.S.
159, 172 (1977). We review de novo a district court’s exercise of authority under the All Writs
Act. See United States v. Perry, 360 F.3d 519, 533 (6th Cir. 2004).

The warden argues that Baze v. Parker, 632 F.3d 338 (6th Cir. 2011), controls our
decision in this case. We disagree. Baze involved a death-row inmate who sought to compel the
state to make state prison officials and other inmates available for interviews so that he could
submit their interview statements in support of his state clemency application. Id. at 340. We
concluded that the All Writs Act and 18 U.S.C. § 3599(f) did not give the district court authority
to grant Baze’s motion. Section 3599(f) “simply empowers a court to authorize, for purposes of
compensation, an attorney to acquire an investigator’s efforts”; it does not “enable a court to
order any party that stands in the investigator’s way to stand down.” Id. at 343.

Baze is distinguishable from Twyford’s case. Here, the district court grounds its order in
its jurisdiction over Twyford’s habeas petition, not in the All Writs Act alone or in § 3599.
Moreover, the district court’s transport order is also of a different character from the order sought
in Baze. The defendant in Baze sought to compel state prison officials to provide him with
information that could be helpful to his state clemency petition, whereas Twyford seeks an order
that the State transport him to obtain medical imaging of his own body for use in his federal
habeas proceeding.

To the extent that Baze applies to this case, it supports the district court’s authority to
issue the transport order. In a footnote, Baze recognized that “federal courts in [federal capital
 No. 20-3346 Twyford v. Shoop Page 8

trials and federal habeas proceedings] may have oversight powers similar to those Baze seeks
here,” but “those powers are exercised pursuant to other sources of authority, not section 3599.”
Id. at 342 n.3. Twyford’s request for an order to compel transport in aid of the district court’s
pre-existing jurisdiction over his federal habeas petition is precisely the type of order
contemplated by the Baze footnote.

Although we have not squarely addressed whether a district court may order the transport
of a habeas petitioner under the All Writs Act, a few district courts in this circuit have addressed
the question and reach differing conclusions. In Elmore v. Warden, Chillicothe Correctional
Institution, No. 1:07-CV-776, 2019 WL 5704042 (S.D. Ohio Nov. 5, 2019), the district court
concluded that it had jurisdiction under the All Writs Act to order a habeas petitioner’s
transportation for neurological imaging. Baze did not preclude the district court from issuing the
order to transport because the defendant in Baze requested an order to obtain information in
support of his state clemency petition, whereas Elmore sought to obtain neurological imaging in
support of his habeas petition before the district court. Id. at *3. By contrast, in Trimble v.
Bobby, No. 5:10-CV-00149, 2011 WL 1527323 (N.D. Ohio Apr. 19, 2011), the district court
denied the petitioner’s request for an order directing the state to transport him for neurological
imaging. The district court concluded that Baze precludes a district court from ordering the
transport of a habeas petitioner for neurological imaging. Id. at *1. Even if Baze were
distinguishable, the district court in Trimble found that the petitioner did not establish that the
district court would be able to consider the results of the neurological imaging under Cullen v.
Pinholster because he had requested neurological imaging in his state-court proceeding and the
state courts denied this request. Id. at *2.

We agree with the district courts’ decisions in this case and in Elmore that a district court
has the authority under the All Writs Act to order the state to transport a habeas petitioner for
medical imaging in aid of its habeas jurisdiction. Such transport orders do not conflict with
habeas statutes or the common law and are consistent with congressional intent to provide for
counsel for capital defendants. In this case, Twyford has shown that such an order is “necessary
or appropriate” to aid the district court in its adjudication of his habeas petition.
 No. 20-3346 Twyford v. Shoop Page 9

The warden contends that the district court’s order is contrary to the role of the writ of
habeas corpus at common law in securing the petitioner’s release from unlawful restraint. In
support, the warden cites the Supreme Court’s decision in Department of Homeland Security v.
Thuraissigiam, 140 S. Ct. 1959 (2020), which held that the Suspension Clause did not entitle an
asylum applicant to additional administrative review of his asylum application. The Supreme
Court in Thuraissigiam reasoned that the writ of habeas corpus “has traditionally been a means
to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely
different end, namely, to obtain additional administrative review of his asylum claim and
ultimately to obtain authorization to stay in this country.” Id. at 1963. Here, in contrast, the
district court’s transport order is in connection with a petition for a writ of habeas corpus
challenging Twyford’s detention, and is therefore, not contrary to the common-law
understanding of habeas.

The district court’s transport order also does not contravene other statutes. The warden
contends that 28 U.S.C. § 2241(c) limits the district court’s authority to order the transport of
prisoners to bringing prisoners only to court to testify or for trial. The relevant portion of
§ 2441(c) states that “[t]he writ of habeas corpus shall not extend to a prisoner unless— . . .
(5) [i]t is necessary to bring him into court to testify or for trial.” (emphasis added).
Specifically, the warden argues that “[t]he allowance of transport orders in these narrow
circumstances is best read to prohibit orders mandating the transportation of prisoners in other
circumstances.” Warden’s Br. at 32. The Seventh Circuit, in a § 1983 suit, concluded that
§ 2241 precluded the district court from ordering the transport of the petitioner for a medical
examination for his lawsuit. Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995). The Seventh Circuit
reads § 2241(c)(5) as a “closed-ended statutory list” that permitted the district court to issue
orders to transport an inmate only to court or to testify, not to an outside medical facility for a
medical exam. Id. at 185.

We disagree with the Seventh Circuit’s interpretation of § 2241(c)(5) in Ivey, which
involved a civil suit under § 1983 rather than a federal habeas action, and instead view
§ 2241(c)(5) as limiting when the district court may issue the writ of habeas corpus itself, not
forbidding ancillary orders needed to aid in adjudicating a petitioner’s habeas petition. Transport
 No. 20-3346 Twyford v. Shoop Page 10

orders, such as the one issued in Twyford’s case, instead fill the gaps left by federal habeas
statutes by ensuring that states cannot prevent federal habeas petitioners from presenting their
cases to the district court.

Habeas discovery rules do not preclude the district court from issuing the transport order
in Twyford’s case. The warden contends that the district court’s order is inconsistent with the
rules for habeas discovery.4 Warden’s Br. at 13–15, 40–42. The warden notes that rules
governing discovery in habeas proceedings require petitioners to show “good cause” to obtain
the evidence, which is a higher bar than the requirement under the All Writs Act that the district
court find the order is “necessary or appropriate.” Id. at 35. Rules limiting habeas discovery
have no bearing on the transport order because Twyford’s request for transportation to OSU for
neurological imaging is not a request for discovery. Rule 6 of the Rules Governing Section 2254
Cases, which governs discovery in federal habeas proceedings, does not define “discovery,”
though Black’s Law Dictionary defines it as the “[c]ompulsory disclosure, at a party’s request, of
information that relates to the litigation,” Discovery, Black’s Law Dictionary (11th ed. 2019).
The transport order does not fall within Black’s definition of discovery, because Twyford is
seeking neurological imaging of his own brain, not information from the other party. But for his
incarceration, Twyford and his attorneys would not need any state involvement in obtaining his
own neurological imaging.

The district court’s transport order is also consistent with congressional intent. Section
3599, although not an independent source of jurisdiction, indicates that Congress considered it
important that persons sentenced to death have counsel and investigative services in post-
conviction proceedings. The district court’s transport order ensures that Twyford’s statutory
right to counsel and investigative services in post-conviction proceedings is meaningful.

Finally, we agree with the district court that Twyford has shown that requiring transport
to OSU is “necessary or appropriate” to aid the district court in its adjudication of Twyford’s
habeas petition. The All Writs Act requires that the writ be “necessary or appropriate in aid of

4The warden argues, in the alternative, that Twyford’s request does not satisfy the requirements for habeas
discovery. Warden’s Br. at 35–40. We need not address this argument because Twyford has repeatedly disclaimed
that he is seeking discovery.
 No. 20-3346 Twyford v. Shoop Page 11

[the courts’] respective jurisdictions.” 28 U.S.C. § 1651. Although Twyford argues that the
transport order is “reasonably necessary,” under the standard for requests for investigative
services under § 3599(f), Twyford’s Br. at 18–19, we affirm the district court’s transport order
under the All Writs Act in aid of its habeas jurisdiction, and thus we review Twyford’s request
for whether it is “necessary or appropriate,” as required by the All Writs Act.

As Twyford notes, neurological imaging establishing the extent of Twyford’s
neurological deficits plausibly relates to his claims of ineffective assistance of counsel regarding
the failure of trial counsel to present evidence of his neurological deficits, ineffective assistance
of the expert witness for failing to conduct testing to show neurological deficits, ineffective
assistance of his post-conviction counsel to conduct testing to show his neurological deficits,
lack of his competency to stand trial, and the involuntariness of his statement. Twyford’s Br. at
23.

The warden contends that district court’s transport order is not appropriate because
Twyford has not shown that the district court may consider the results of the neurological testing
under Cullen v. Pinholster, 563 U.S. 170 (2011), which limits when a district court in habeas
proceedings may consider evidence not presented before the state courts, Warden’s Reply Br. at
22. The dissent similarly accuses us of “circumvent[ing] the Supreme Court’s admonition
against the admission of new evidence at the federal habeas review stage.” Dissenting Op. at 14.
In issuing the transport order, the district court emphasized that “at this stage of the
proceedings,” it was not in a position “to make a determination as to whether or to what extent it
would be precluded by Cullen v. Pinholster from considering any evidence in connection with
Dr. Scharre’s evaluation, including whether that information could be considered for any other
purpose such as revisiting procedural default.” R. 109 (03/19/20 Op. & Order at 7–8) (Page ID
#7108–09). At this stage, on review of Twyford’s interlocutory appeal seeking a transport order,
we need not consider the admissibility of any resulting evidence. The district court is best
situated in the first instance to untangle the knotty Pinholster evidentiary issues in Twyford’s
case.

The dissent also contends that the Supreme Court’s decision in Harris v. Nelson,
394 U.S. 286 (1969), supplies a test for reviewing Twyford’s request for a transport order, and
 No. 20-3346 Twyford v. Shoop Page 12

that, applying the Harris test, the transport order is not “necessary or appropriate” to aid the
district court’s jurisdiction over Twyford’s case. Dissenting Op. at 15. Harris, a decision
predating the Antiterrorism and Effective Death Penalty Act of 1996, held that Federal Rule of
Civil Procedure 81(a)(2), which governed the application of the rules to habeas corpus,
articulated a general presumption against applying the Federal Rules of Civil Procedure to
habeas corpus proceedings. The defendant in Harris sought to compel the warden to respond to
interrogatories pursuant to Federal Rule of Civil Procedure 33. Id. at 289. The Court reasoned
that Congress did not “intend[] to extend to habeas corpus, as a matter of right, the broad
discovery provisions which, even in ordinary civil litigation, were ‘one of the most significant
innovations’ of the new rules.” Id. at 295 (quoting Hickman v. Taylor, 329 U.S. 495, 500
(1947)). At the same time, the Court recognized that “a district court may, in an appropriate
case, arrange for procedures which will allow development, for purposes of the hearing, of the
facts relevant to disposition of a habeas corpus petition.” Id. at 298. “[W]here specific
allegations before the court show reason to believe that the petitioner, may, if the facts are fully
developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it
is the duty of the court to provide the necessary facilities and procedures for an adequate
inquiry.” Id. at 300. In that circumstance, the Court reasoned that courts may exercise their
authority under the All Writs Act to “fashion appropriate modes of procedure, by analogy to
existing rules or otherwise in conformity with judicial usage.” Id. at 299.

Harris does not govern the district court’s exercise of its authority under the All Writs
Act to order the transport of Twyford. Harris concerns a habeas petitioner’s request for
discovery. See Thomas v. United States, 849 F.3d 669, 680 (6th Cir. 2017) (“Rule 6(a) of the
Rules Governing § 2255 Proceedings allows the district court to enable further discovery in a
habeas proceeding where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is confined
illegally and is therefore entitled to relief.” (citing Harris, 394 U.S. at 300)); Hodges v. Bell,
170 F. App’x 389, 393–94 (6th Cir. 2006) (citing Harris in a decision reversing the district
court’s order requiring that the prison videotape the movements of the petitioner and staff
members interacting with the petitioner); Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991)
(citing Harris in a decision affirming the district court’s denial of the petitioner’s request for
 No. 20-3346 Twyford v. Shoop Page 13

production of documents from the Parole Commission). Twyford, by contrast, has repeatedly
disclaimed that he is seeking discovery. It is understandable that the warden would cite Harris
only for the principle that “habeas proceedings do not normally allow for liberal discovery or
federal factfinding.” Warden’s Br. at 41.

Therefore, we affirm the district court’s determination that the transport order is
“necessary or appropriate” in aid of its jurisdiction to adjudicate Twyford’s habeas petition.

IV. CONCLUSION

For the foregoing reasons, we hold that we have appellate jurisdiction under the
collateral-order doctrine to review the warden’s interlocutory appeal, and we AFFIRM the
district court’s transport order issued pursuant to its exercise of its habeas jurisdiction and the All
Writs Act.
 No. 20-3346 Twyford v. Shoop Page 14

_________________

DISSENT
_________________

ALICE M. BATCHELDER, Circuit Judge, dissenting. In my view, Harris v. Nelson,
394 U.S. 286, 299-300 (1969), governs the exercise of the All Writs Act here. Because the
majority holds otherwise, I must respectfully dissent. And because Twyford has not met the
Harris standard—and no one contends that he has—I would reverse the judgment of the district
court. Finally, and perhaps most importantly, the further ramifications of this decision are worth
careful note because its effect, if not its purpose, is to circumvent the Supreme Court’s
admonition against the admission of new evidence at the federal habeas review stage. See Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).

Under the All Writs Act, Article III courts “may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). Despite this broad language, the Act’s authority is not unlimited. As is
relevant here, a habeas court may use the Act to aid the petitioner’s efforts to develop facts and
evidence “where specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is
therefore entitled to relief.” Harris, 394 U.S. at 300; see also Hodges v. Bell, 170 F. App’x 389,
394 (6th Cir. 2006) (citing Harris for this proposition). In Pinholster, 563 U.S. at 181, the Court
emphasized AEDPA’s strict limitations on the admission of new evidence—i.e., evidence that
was not before the state courts—at the federal habeas stage. Neither the Supreme Court nor this
court has reconciled Harris’s right to factual development (which pre-dates AEDPA) with
Pinholster’s prohibition.

Because of the apparent Harris-Pinholster friction, the district court was, at a minimum,
obliged to comply with Harris before invoking its authority under All Writs Act to resolve
Twyford’s claim. That is, the court should have first determined whether the evidence Twyford
was seeking (i.e., brain-scan results) would—supposing the results were as Twyford hoped or
predicted—support his specific claims, so as to show that he was entitled to habeas relief. The
 No. 20-3346 Twyford v. Shoop Page 15

district court did not make—indeed, expressly avoided making—this determination, claiming
that it could not make the determination until it had the actual test results for consideration.

For his part, Twyford neither argued nor proved that the brain-scan results would meet
the Harris standard. Instead, Twyford cloaked his case in a broad argument that counsel,
appointed under 18 U.S.C. § 3599, has a right to investigate his client’s habeas claims. We have
rejected such a broad reading of § 3599. Baze v. Parker, 632 F.3d 338, 345 (6th Cir. 2011)
(“Accordingly, we hold that . . . 3599(f) provides a federal court with no jurisdiction to issue any
order beyond the authorization of funds.”). As the majority explains in more detail, Twyford’s
claim sounds in the All Writs Act, not § 3599. But the majority does not apply Harris’s
limitation.

Pursuant to Harris, the All Writs Act empowers the district court to issue orders that
enable a habeas petitioner’s collection of evidence when: (1) the petitioner has identified specific
claims for relief that the evidence being sought would support or further; and (2) the district
court has determined that if that evidence is as the petitioner proposed or anticipated, then it
could entitle the petitioner to habeas relief. To be sure, this might be easy to the point of
formulaic. On the other hand, it might not survive its first confrontation with Pinholster’s
inadmissibility standard.

In the present case, if the court properly applied Harris, then Twyford would first have to
point to which of his habeas claims the brain scan would support and explain how the anticipated
results of that scan would further those claims. Then, the court would have to determine whether
that evidence would entitle Twyford to habeas relief, and whether that evidence could overcome
Pinholster. If the district court considered Twyford’s specific claims and explanations, found
that Pinholster would not bar admission, and determined that the requested evidence (if as
anticipated) could reasonably entitle Twyford to habeas relief, then it could invoke the All Writs
Act to order the federal government to transport Twyford to OSU for testing.

But instead, the district court has enabled Twyford to proceed in reverse order by
collecting evidence before justifying it. Because that contradicts Harris and, as was mentioned
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at the outset, appears by either design or effect to circumvent Pinhoslter, I must respectfully
dissent.