964 F.3d 122
2d Cir.2020Background
- Ronald Davidson, a New York parolee living in NYC, litigated a long‑running suit alleging deliberate indifference by state prison officials; a bench trial was held in Buffalo on remaining claims.
- Davidson asked the district court to order the New York State Board of Parole to permit him to travel to Buffalo and to pay his travel costs; the court declined, concluding it lacked authority to compel the Parole Board.
- The district court allowed Davidson to testify one day by live video (with counsel present) and to listen to other witnesses by phone and to consult with counsel during breaks; Davidson missed portions of two witnesses’ testimony because of phone problems.
- The district court entered judgment for defendants; Davidson appealed solely arguing the court should have issued a writ of habeas corpus ad testificandum to compel his physical presence.
- The Second Circuit held that a district court may issue such a writ for a parolee under 28 U.S.C. § 2241(c)(5), but affirmed because Davidson failed to request the writ below (so only plain‑error review), failed to show issuance was “necessary,” and any error was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to compel a parolee’s presence via writ of habeas corpus ad testificandum | Court could/should order production so Davidson could attend trial | District court lacked authority to order Parole Board to permit travel | Court: District courts have discretion to issue such a writ under 28 U.S.C. § 2241(c)(5) for parolees in custody |
| Preservation / standard of review | Failure to issue writ was error requiring reversal | Davidson never sought writ below; relief requested was different; review limited | Not preserved; only plain‑error review, which fails here |
| § 2241(c)(5) “necessary” requirement | Physical presence was necessary for fairness and credibility | Remote testimony and consultation sufficed; Davidson didn’t show he exhausted/fully pursued parole remedies | Davidson failed to show physical presence was "necessary" |
| Prejudice / harmlessness | Missing physical presence prejudiced Davidson (missed testimony portions) | Davidson testified by video, heard most testimony, consulted counsel; no showing of different outcome | Any error was harmless; no substantial effect on trial outcome |
Key Cases Cited
- Latiolais v. Whitley, 93 F.3d 205 (5th Cir. 1996) (no constitutional right to be physically present at a civil trial)
- Perotti v. Quinones, 790 F.3d 712 (7th Cir. 2015) (district court discretion to issue writ; factors for necessity)
- Jones v. Cunningham, 371 U.S. 236 (1963) (parolee can be "in custody" for habeas purposes)
- Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34 (1985) (custodian must produce prisoner pursuant to writ; courts cannot force third parties to bear production costs)
- Rivera v. Santirocco, 814 F.2d 859 (2d Cir. 1987) (alternatives to issuing writ and considerations about cost/burden)
- Pollard v. White, 738 F.2d 1124 (11th Cir. 1984) (harmlessness standard and availability of alternatives to physical presence)