IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA,

TALLAHASSEE DIVISION

PROPHET PAULCIN,

Plaintiff,

v.

DUANE SPEARS, et al.,

Defendants.

CASE NO. 4:10-cv-483-RH/WCS

PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM

TO: The Honorable Judges of the Northern District of Florida

Petitioner, PROPHET PAULCIN, through undersigned counsel, would show:

1. He is the plaintiff in the above-styled action.

2. This matter is set for trial commencing October 17, 2011.

3. PROPHET PAULCIN, Plaintiff herein, is currently in the custody of the 

Florida Department of Corrections, at Union Correctional Institution. His 

presence and testimony will be necessary to the proceedings.

4. The presence of the Plaintiff does not present security risks different in kind 

from those presented by other prisoners who might testify in court.

5. The presence of the Plaintiff will not present any unusual transportation and 

safekeeping costs. Movement of prisoners to court is routine. The Florida 

Department of Corrections has well-established procedures to facilitate such 

transfers. 

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6. A Proposed Writ of Habeas Corpus ad Testificandum will be sent by e-mail.

MEMORANDUM OF LAW

Writs of Habeas Corpus ad Testificandum are authorized by 28 U.S.C. § 

2241(c)(5). Pennsylvania Bureau of Corrections v. U.S. Marshals Service, 474 U.S. 34, 106 

S.Ct. 355, 88 L.Ed.2d 189 (1985); Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977). In 

Ballard, the former Fifth Circuit said:

Precedent for the district court's use of the writ of habeas corpus ad 

testificandum to command the presence of these witnesses is steeped in 

history. Judge Blackstone describes habeas corpus as "the most celebrated writ 

in the English law. Of these there are various kinds made use of by the courts 

at Westminster, for removing prisoners from one court in to another, for the 

easy administration of justice." 3 Commentaries * 129. The writ of habeas 

corpus ad testificandum, issued to secure the presence of a prisoner at trial for 

testimony, is among those listed. Id. * 130. Congress authorized federal courts 

to issue writs of habeas corpus in the Judiciary Act of 1789, c. 20, § 14, 1 Stat. 

81-82, and Mr. Justice Marshall in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 98-99, 

2 L.Ed. 554, 562 (1807), citing 3 W. Blackstone, Commentaries * 129-30, 

interpreted this section to encompass the authority to issue writs of habeas 

corpus ad testificandum. In Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 

514, 515 (1845), the United States Supreme Court concluded that the federal 

court's authority to issue the writ to secure the testimony of prisoners extended 

to those persons in custody under a sentence or execution of a state court. See 

also Adams v. United States, 423 F.Supp. 578 (E.D.N.Y. 1976). (Writ of habeas 

corpus ad testificandum issued to secure state prisoner's testimony before a 

United States Grand Jury.)

557 F.2d at 479-80.

The decision to issue the writ rests within the sound discretion of the Court. 

Ballard, supra, 557 F.2d at 480; Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). 

In exercising its discretion, the Court must consider "such factors as whether the 

prisoner's presence will substantially further the resolution of the case, the security 

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risks presented by the prisoner's presence, the expense of the prisoner's transportation 

and safekeeping, and whether the suit can be stayed until the prisoner is released 

without prejudice to the cause asserted." Ballard, supra, 557 F.2d at 480; Poole, supra, 

819 F.2d at 1028. However, the probability of success on the merits or the value of 

the case are not factors which may be considered. Ballard, supra, 557 F.2d 481; Poole, 

supra, 819 F.2d at 1028-29.

In general, there must be adequate alternatives if the prisoner is not to be 

present. Poole v. Lambert, supra. And, as the Court noted in Ballard, although the 

prisoner does not have an absolute right to be present, "when the file and record 

require the district court to make credibility choices, the petitioner is entitled to a day 

in court with live testimony." 557 F.2d at 480.

 WHEREFORE, Petitioner prays that this Court issue a Writ of Habeas Corpus ad 

Testificandum to the Superintendent of the prison where the Plaintiff is confined, 

ordering him or her to bring Plaintiff before this Court to testify in said case and to be 

returned to the Superintendent of said Institution as soon as said trial is completed.

Respectfully submitted,

s/James V. Cook__________________

JAMES V. COOK, ESQ.

Florida Bar Number 0966843

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

Case 4:10-cv-00483-RH-WCS Document 54 Filed 09/27/11 Page 3 of 4
I CERTIFY the foregoing was filed electronically on 9/27/11 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

MARK HIERS

Office of the Attorney General 

The Capitol, PL-01

Tallahassee, FL 32399-1050

s/James V. Cook______________________

JAMES V. COOK

Case 4:10-cv-00483-RH-WCS Document 54 Filed 09/27/11 Page 4 of 4