19-280-pr
Davidson v. Desai, et al.

                            In the
                United States Court of Appeals
                            FOR THE SECOND CIRCUIT



                                AUGUST TERM 2019
                                  No. 19-280-pr

                               RONALD DAVIDSON,
                                Plaintiff-Appellant,

                                        v.

    UDAY K. DESAI, M.D., CHENG YIN, M.D., HEMAN K. FOWLER, N.P.,
       FLOYD BENNETT, CALVIN WEST, DANA M. SMITH, WESLEY
                          CANFIELD, M.D.,
                         Defendants-Appellees. 1



             On Appeal from the United States District Court
                 for the Western District of New York



                               ARGUED: MAY 22, 2020
                               DECIDED: JULY 7, 2020



Before:         WESLEY, LIVINGSTON, and MENASHI, Circuit Judges.

        Ronald Davidson appeals from a judgment entered by the
United States District Court for the Western District of New York


1   The Clerk of Court is directed to amend the caption as above.
(Skretny, J.), on January 9, 2019. After a five-day bench trial, the court
rejected Davidson’s claims of deliberate indifference by prison
officials to his medical conditions while he was incarcerated in a New
York state prison. At the time of trial, Davidson was on parole in New
York City and asked the district court to order the New York Board
of Parole to allow Davidson to attend his trial in Buffalo and for the
district court to pay for his travel. He appeals solely on the basis that
the district court erred by not issuing a writ of habeas corpus ad
testificandum to compel his attendance.

      We conclude that although a parolee has no constitutional right
to attend his own civil trial, a district court does have the authority to
compel a parolee’s attendance by issuing a writ of habeas corpus ad
testificandum pursuant to 28 U.S.C. § 2241(c)(5). But because
Davidson did not seek such a writ from the district court and because
the relief he did request differed significantly from that provided by
the writ, our review is only for plain error, which is not shown here.

      Even if Davidson’s request at the district court were construed
as a petition for the writ, we would still affirm because Davidson did
not demonstrate that issuing the writ would be “necessary” as
required by § 2241(c)(5). Moreover, even if the district court should
have issued the writ, we conclude that the failure to do so was
harmless because Davidson has not demonstrated that the outcome
of the trial would have been different if he had been physically
present.

      Accordingly, we AFFIRM.




                                    2
              KEVIN P. MULRY, Farrell Fritz, P.C., Uniondale, New
              York, for Plaintiff-Appellant.

              FRANK BRADY, Assistant Solicitor General (Victor
              Paladino, Senior Assistant Solicitor General, Barbara D.
              Underwood, Solicitor General, on the brief), for Letitia
              James, Attorney General of the State of New York,
              Albany, New York.



MENASHI, Circuit Judge:

       In this appeal, we decide whether a district court can compel
state officials to bring a parolee to his own civil trial and, if so, what
showing is required to do so. We conclude that although a parolee
has no constitutional right to attend his own civil trial, a district court
has discretion to issue a writ of habeas corpus ad testificandum to
compel a parolee’s attendance when “necessary to bring him into
court to testify or for trial.” 28 U.S.C. § 2241(c)(5).

       Plaintiff Ronald Davidson was on state parole in New York
City when his civil trial—alleging deliberate indifference by state
prison officials—began in Buffalo. Davidson, represented by counsel
throughout the trial, claimed his terms of parole forbade him from
leaving New York City, so he asked the district court to order the New
York Board of Parole to allow him to attend his trial and for the
district court to pay his travel expenses to Buffalo. The district court
rejected those requests because it believed it lacked authority to order
the Board of Parole to let Davidson travel to Buffalo.



                                     3
      We conclude that the district court had authority to issue a writ
of habeas corpus ad testificandum compelling Davidson’s state
custodian to bring him to the trial in Buffalo. But Davidson did not
seek such a writ at the district court, and the relief he requested was
far different than what the writ would provide. A writ of habeas
corpus would not merely “allow[]” him to leave New York City—it
would mandate his attendance in Buffalo; and the costs of bringing
him to Buffalo would be borne by his state custodian, not the district
court. Because Davidson did not ask the district court for the writ in
name or in substance, our review is only for plain error, which
Davidson cannot demonstrate.

      Even if we were to construe Davidson’s requests at the district
court as a petition for a writ of habeas corpus ad testificandum, he still
would not be entitled to relief because he failed to demonstrate that
his physical presence was “necessary,” as required by 28 U.S.C.
§ 2241(c)(5). The court had already authorized Davidson to testify
remotely by video and then use a phone to listen to other witnesses
and to consult with his counsel during breaks. Given these
accommodations, Davidson’s physical presence was not necessary.
Davidson also failed to develop the record to show that he had fully
pursued state remedies that could provide him with relief without the
need to issue the writ. He claimed to have asked parole officials for
permission to leave New York City, but the record was unclear about
whether he or his counsel had made a proper request and, if so,
whether that request had been ignored or denied.

      Finally, even if the district court should have issued a writ of
habeas corpus ad testificandum, we conclude that the failure to do so
was harmless. Davidson testified remotely by video, listened by
phone to the remaining witnesses, and consulted frequently with his
                                    4
counsel during breaks. Although technical issues prevented
Davidson from hearing portions of two witnesses’ testimony,
Davidson was still able to consult with his counsel before those
witnesses were excused, and the district court allowed Davidson’s
attorney a wider scope on recross-examination. Even now, despite
having the full transcripts, Davidson has not identified any line of
questioning he was unable to pursue because he was not physically
present. Without evidence that the outcome of the case was affected,
any error was harmless.

      We affirm the district court’s judgment.

                          BACKGROUND

                                   I

      From 1976 to 2016, Plaintiff Ronald Davidson was incarcerated
in a New York state prison. In 2003, he filed this lawsuit in the
Western District of New York, alleging that prison officials retaliated
against him for filing grievances and were deliberately indifferent to
several medical conditions. He was paroled in April 2016 and moved
to New York City.

      The district court granted summary judgment to the
defendants on all of Davidson’s claims except for three counts of
deliberate indifference to medical conditions, which the court set for
a bench trial beginning June 19, 2017. At a hearing on May 3, 2017,
Davidson’s pro bono attorneys raised the issue of how Davidson—
still on parole in New York City—would get to his trial in Buffalo:
“We have asked Mr. Davidson to take the steps necessary with his
parole officer to have permission to come up here for the trial, and
that has yet to happen. We have written the parole officer. I haven’t


                                  5
had any response. But I’m—we’ve encouraged Mr. Davidson over
and over again to get that permission.” App’x 46-47.

      On May 23, 2017, Davidson’s counsel filed a motion stating: “I
have been trying for over six months to have my client obtain
permission from New York State Parole to attend the trial in person
and also to obtain housing at a State Parole Halfway House locally
during the trial. I have had no success to date. My client has not
obtained permission to attend the trial from New York State Parole.”
App’x 73 (paragraph numbers omitted). “As a result, on April 20,
2017, I sent his Parole Officer a letter requesting her assistance in
obtaining permission for Mr. Davidson to attend the trial. I forwarded
to her a copy of the Court’s Scheduling Order identifying the trial
date. I received no response.” Id.

      The motion then stated: “On May 15, 2017, I contacted my
client’s supervisory Parole Officer by email to request his assistance.
I have had no response from him either. The only response I have had
regarding the email to the Supervisor is from my client who wrote a
letter to his supervisory Parole Officer telling him to ignore my email
and claiming that I had made false statements to the Parole Officer.”
App’x 74 (paragraph number omitted).

      In the same motion, Davidson’s counsel asked the court to pay
for Davidson’s transportation to Buffalo, his lodging at a hotel, and
his meals. App’x 75. There was only one request regarding
attendance: “In light of the lack of response from the New York State
Parole Officer, I also ask the Court for an Order directing that my
client be allowed to attend the trial.” Id. The motion then noted: “My
client has also indicated a willingness to attend the trial by video from



                                     6
the Southern District Courthouse, but I have no knowledge as to
whether that is a feasible alternative.” Id.

      The district court heard this motion on May 25, 2017, and
stated: “I’m not going to direct the New York State Board of Parole to
make a determination or to permit Mr. Davidson to travel. I don’t
have the jurisdiction in my view.” App’x 80. The court also stated that
it lacked information about the terms of parole: “I don’t have full
information on what the parole conditions are. You know, I don’t
have what the protocol is with respect to an individual seeking
permission to travel. You know, that travel request might be
something that’s beyond the restrictions purview of the conditions of
parole.” App’x 83-84.

      After the court had rejected his requests, Davidson (appearing
via phone) returned to the topic and contended that he “shouldn’t
have to seek permission” to come to Buffalo and that when he was
previously in prison, “every time I had a trial a writ of habeas corpus
ad testificandum was issued and the authorities got me there. So
you’re telling me on the outside I should have more problems getting
to a trial?” App’x 89. The court stated, “All right. You’ve made your
record. I will note that for the record.” Id.

      At the same hearing, Davidson also repeatedly made clear that
he was “willing to appear live—by live video from the Southern
District of New York if you can arrange it. I can’t arrange it on my
own. I’m willing to appear live by video. That’s definitely what I’m
willing to do.” App’x 97; see also App’x 91.

      The minute entry for this hearing stated: “Plaintiff still needs to
secure permission to travel from NYS Parole. Court will not direct
same.” App’x 37. The district court later granted approval for

                                     7
Davidson to testify on the first day of trial by live video from the
Southern District of New York with one of his attorneys by his side,
but the facility and his attorney were not available for the entire trial,
so the court granted approval for Davidson to listen to the other
witnesses by phone and to consult with his attorneys during breaks.
Id.

                                    II

      The trial began on June 19, 2017, and before opening
statements, Davidson’s attorney asked for a “hearing [on] the failure
of the parole officials in New York to issue him a pass,” App’x 121,
but the district court rejected the request, saying no hearing was
necessary and that it had “made [its] ruling and that will stand,”
App’x 122. The first witness was Davidson, who testified by live video
from the Southern District of New York for the entire day with one of
his attorneys by his side. There were no technical issues, and the
district court allowed Davidson to speak privately with his attorney
before concluding his direct examination and again before redirect.

      On the second day of trial, June 20, 2017, Davidson was
authorized to call in and listen to the defendants’ witnesses, starting
at 9:00 a.m. with Floyd Bennett (a former prison superintendent). But
Davidson failed to call in on time. His attorney informed the court
that Davidson was aware of his ability to call in but “I just don’t know
whether he’s going to take advantage of that or not.” App’x 350. His
attorney did not object to proceeding with Bennett’s testimony.
Davidson missed about 20 pages of testimony before his attorney
noted that Davidson was on the line and ready to listen, but he was
cut off again. Davidson missed the next 18 pages of Bennett’s
testimony before calling back in. Before Bennett’s cross-examination,


                                    8
Davidson was able to speak privately with his counsel, although
Davidson was not connected for the last few pages of the cross-
examination itself. In total, Bennett testified for about 61 pages of
transcript, and it appears Davidson was on the line for about 18 of
those pages.

      The next witness was Calvin West (a subsequent prison
superintendent). His direct examination was about 13 pages long,
which Davidson missed entirely. At that point the court tried to
connect Davidson, but the call went to voicemail. Davidson missed
West’s cross-examination, which was about 17 pages, as well as his
redirect of 3 pages, but Davidson was reconnected before West’s 7-
page recross-examination.

      Just before Davidson was reconnected, his attorney stated:
“[Davidson] indicated that there was some problem at his end with
the phone, which he believes is corrected. So, he asked if we could try
again at [a specified] number.” App’x 360.

      Davidson’s attorney stated that he had been unable to discuss
West’s testimony with Davidson before moving to cross-examination,
prompting the district court to offer a wider scope of questioning on
recross-examination than would normally be permissible: “I’m going
[to] make an accommodation in that regard, because the logistics are
somewhat difficult, but I think this procedure works and I think it’s
effective and efficient.” Dist. Ct. ECF No. 297 at 108. In total, West
testified for about 40 pages, and it appears Davidson was on the line
for about 6 of those pages.

      The next witness was Dana Smith (a deputy prison
superintendent), and it appears Davidson was able to hear all of
Smith’s testimony and was given a chance to discuss strategy

                                  9
privately with his counsel. The next witness was a pre-recorded
deposition of Cheng Yin (a prison doctor), about which Davidson had
already discussed strategy with his counsel.

      The third day of trial was June 21, 2017. There was a very brief
period during which Davidson was not on the line, but it appears he
heard all of the testimony of Uday Desai (a prison doctor) and had a
chance to speak privately with his counsel about strategy.

      The fourth day of trial was June 22, 2017. Davidson again was
on the phone and apparently heard witnesses Heman Fowler (a
prison nurse) and Wesley Canfield (a prison doctor) without issues
and had a chance to speak privately with his counsel about strategy
for both witnesses. The final witness of the trial was Plaintiff’s expert
Mary Reid (a professor of oncology), and Davidson apparently heard
the entire testimony.

      The fifth and final day of trial was June 23, 2017, which featured
no witnesses, but Davidson did have a chance to discuss strategy
privately with his counsel.

      For the entire trial, witness testimony comprised about 613
pages of transcript, of which Davidson was apparently on the line for
about 536 pages. This total does not include the additional testimony
of Dr. Yin, which was presented by pre-recorded video but not
included in the original transcript. Yin’s testimony was later
transcribed on 120 additional pages.

      On January 8, 2019, the district court issued a lengthy decision
ruling against Davidson on all claims. In a footnote, the court
addressed the issue of Davidson’s request for a hearing and reiterated
its prior position that “the question of whether Davidson should be


                                   10
permitted to travel was not reserved to this Court, but rather, was
exclusively reserved to state parole officials.” App’x 417 n.6.

      Davidson timely appealed to this court.

                             DISCUSSION

                                     I

      Davidson contends that the district court had the authority to
issue a writ of habeas corpus ad testificandum compelling his
physical attendance at his own civil trial. We agree, but we
nonetheless affirm because Davidson did not seek that form of relief
below, and he cannot demonstrate plain error.

      A litigant has “no constitutional right to be present, or to testify,
at his own civil trial.” Latiolais v. Whitley, 93 F.3d 205, 208 (5th Cir.
1996). Although there is a constitutional right of “access to the courts,”
that right is satisfied by an “opportunity to consult with counsel and
to present his case to the court,” which typically can be accomplished
even when the litigant is not physically present at the courthouse.
Perotti v. Quinones, 790 F.3d 712, 721 (7th Cir. 2015). Accordingly, the
“right to access does not necessarily mean the right to be physically
present at the trial of a civil suit.” Pollard v. White, 738 F.2d 1124, 1125
(11th Cir. 1984).

      A district court does, however, have the discretion to compel
the physical presence of any “prisoner” at his own civil trial by
issuing a writ of habeas corpus ad testificandum pursuant to 28 U.S.C.
§ 2241(c)(5), which states: “The writ of habeas corpus shall not extend
to a prisoner unless … [i]t is necessary to bring him into court to
testify or for trial.” The decision whether to issue a writ of habeas
corpus ad testificandum rests in the district court’s discretion, Perotti,

                                    11
790 F.3d at 721, although a request for the writ may not be “arbitrarily
denied,” Muhammad v. Warden, Balt. City Jail, 849 F.2d 107, 112 (4th
Cir. 1988).

       To be sure, § 2241(c) refers to “a prisoner” rather than a parolee.
However, the Supreme Court has recognized that, at least in some
circumstances, a parolee qualifies as a prisoner under the statute. See
Jones v. Cunningham, 371 U.S. 236, 243 (1963) (“While petitioner’s
parole releases him from immediate physical imprisonment, it
imposes conditions which significantly confine and restrain his
freedom; this is enough to keep him in the ‘custody’ of the members
of the [state] Parole Board within the meaning of the habeas corpus
statute.”).

       The parties in this case agree that Davidson’s parole conditions
were sufficiently severe that he was a “prisoner” for purposes of
§ 2241(c)(5). We therefore have no doubt that a writ of habeas corpus
ad testificandum could issue here upon a proper showing.                          2


Accordingly, although Davidson had no right to attend his civil trial,
the “district court ha[d] the power to procure [Davidson’s] presence
and testimony [at his own civil trial] through issuance of the writ of
habeas corpus ad testificandum” pursuant to § 2241(c)(5). Latiolais, 93
F.3d at 208 (italics omitted). 3


2 Such a showing, as discussed below, would include a demonstration that
Davidson was subject to conditions of parole that limited his travel and
prevented him from attending his own civil trial, that he could not obtain
relief from parole authorities, and that his physical attendance was
necessary to secure his right of access to the court. See Part II, infra.
3 Nearly every circuit has held that a district court may issue a writ of
habeas corpus ad testificandum to compel the attendance of an inmate at
his own civil trial. See Perotti, 790 F.3d at 721; United States v. One 1989 23 Ft.

                                        12
       Davidson insists the district court abused its discretion by not
issuing the writ in response to his motion. But, at the district court,
Davidson never sought a writ of habeas corpus ad testificandum—or
habeas relief of any type, for that matter—nor did he cite to 28 U.S.C.
§ 2241 or any other habeas provision. Most tellingly, his motion did
not seek the type of relief that the writ would provide. He asked the
district court for “an Order directing that [Davidson] be allowed to
attend the trial” and for the court to cover his travel expenses to
Buffalo. App’x 75. Yet a writ of habeas corpus ad testificandum would
not merely “allow” Davidson’s attendance—it would mandate it; and
travel expenses would not be reimbursed by the court—those costs
would be borne by his state custodian, who would be required to
bring Davidson to the federal courthouse in Buffalo. See Penn. Bureau
of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 38-39 (1985) (holding that
the custodian named in a writ of habeas corpus ad testificandum must
“‘bring the party before the judge who granted the writ,’” and there
is no authority for a court “to cause third parties who are neither
custodians nor parties to the litigation to bear the cost of producing
the prisoner in a federal court”). 4




Wellcraft Motor Vessel, 125 F.3d 842 (1st Cir. 1997) (table); Latiolais, 93 F.3d at
208; Hawkins v. Maynard, 89 F.3d 850 (10th Cir. 1996) (table); Hernandez v.
Whiting, 881 F.2d 768, 771-72 (9th Cir. 1989); Muhammad, 849 F.2d at 113;
Pollard, 738 F.2d at 1125; Jerry v. Francisco, 632 F.2d 252, 255-56 (3d Cir. 1980);
see also Rivera v. Santirocco, 814 F.2d 859, 860 (2d Cir. 1987) (noting that the
district court issued such a writ).
4 See also United States v. Ford, 550 F.2d 732, 737 (2d Cir. 1977) (noting that a
writ of habeas corpus ad testificandum “authorizes a federal court to
command a state custodian to turn over a prisoner to federal authority,
presumably without delay or the right to disapprove”).

                                        13
       No specific terminology was required, but there is a gulf
between the relief Davidson sought below and what he now insists
the district court should have granted. The district court was not put
on notice of a request for the writ, and because Davidson was
counseled throughout this period, the district court was not obliged
to construe Davidson’s requests liberally. See Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994). 5

       Because Davidson did not ask the district court for a writ of
habeas corpus ad testificandum either in name or in substance, our
review is only for plain error, which must “be invoked with extreme
caution in the civil context,” meaning only in those circumstances
“where an unpreserved error is so serious and flagrant that it goes to
the very integrity of the trial.” Pescatore v. Pan Am. World Airways, 97
F.3d 1, 18 (2d Cir. 1996) (alteration and internal quotation marks
omitted). Davidson has not attempted to satisfy this strict standard,
nor could he, given that no prior case has held that § 2241(c)(5) applies
to parolees, and it is far from “plain” that he was entitled to the writ,
see Part II, infra, or that he suffered prejudicial harm from the failure
to issue it, see Part III, infra.


5 To be sure, at a pre-trial motions hearing, Davidson himself mentioned in
passing that in prior trials “a writ of habeas corpus ad testificandum was
issued and the authorities got me there.” App’x 89. But by that time
Davidson’s attorneys had already submitted, and the district court had
already denied, a request for an order compelling the Parole Board to
permit Davidson to travel and for the district court to cover the travel costs.
Moreover, Davidson’s knowledge of courts having issued this particular
writ in the past makes it all the more noteworthy that his counsel never
sought such a writ in this case. In any event, as discussed below, we
conclude that Davidson was not entitled to the writ even assuming he did
seek it. See Part II, infra.

                                      14
       Accordingly, although the district court did have authority to
compel Davidson’s attendance by issuing a writ of habeas corpus ad
testificandum, on this record we see no plain error in the court’s
failure to do so.

                                    II

       Even if we were to assume the district court should have
construed Davidson’s motion as a petition for a writ of habeas corpus
ad testificandum, we would still affirm because Davidson failed to
demonstrate to the district court that issuing the writ was
“necessary.” 28 U.S.C. § 2241(c)(5) (authorizing a court to issue the
writ for a prisoner when “[i]t is necessary to bring him into court to
testify or for trial”).

       The party seeking a writ of habeas corpus ad testificandum
bears the burden of demonstrating necessity. United States v. Wright,
63 F.3d 1067, 1071 (11th Cir. 1995); United States v. Cruz-Jiminez, 977
F.2d 95, 103 (3d Cir. 1992); United States v. Smith, 924 F.2d 889, 896 (9th
Cir. 1991).

       Davidson failed to show necessity in two different ways: he did
not explain to the district court why his physical presence was so
important when he was already permitted to appear electronically by
video and by phone, nor did he demonstrate that he had diligently
pursued other available avenues for receiving permission to travel to
Buffalo.

                                    A

       Some courts have developed lists of factors to consider when
deciding whether a prisoner’s physical presence is “necessary” at his
own civil trial—including whether the case will be tried to a jury or

                                    15
to the bench, the importance of the prisoner’s testimony, whether
substitutes are available for that testimony, whether the trial could be
postponed, and whether there are security or cost concerns in
bringing the prisoner to the courthouse. See, e.g., Perotti, 790 F.3d at
721; Pollard, 738 F.2d at 1125.

      We need not provide an exhaustive list here. Davidson himself
recognized that his physical presence would not be necessary; indeed,
he repeatedly said he was “willing to attend the trial by video.” App’x
75; see also App’x 91, 97. Physical presence at a civil bench trial is not
“necessary” for purposes of 28 U.S.C. § 2241(c)(5) when remote
electronic participation is available, at least in the absence of a
showing to the contrary by the party seeking the writ. Davidson’s
willingness to attend the entire trial by remote video confirms that he
could not make such a showing here.

      Although Davidson was ultimately unable to appear by remote
video for the entire trial, the district court still granted him
accommodations that confirmed his physical presence was not
necessary. The court permitted Davidson to testify via live video
transmission for one day with his attorney by his side, then allowed
Davidson “to listen by telephone to the rest of the bench trial and then
communicate with his counsel by telephone during breaks.”
App’x 37. Being physically present might have provided some
incremental benefit, but Davidson failed to explain to the district
court why taking the additional step of compelling his physical
presence was so important that it was “necessary” for a fair trial. See,
e.g., Pollard, 738 F.2d at 1125 (holding that issuing a writ of habeas
corpus ad testificandum was unnecessary because the plaintiff “was
represented by competent counsel and testified by deposition”).


                                   16
      Davidson’s failure to demonstrate necessity was especially
problematic because issuing a writ of habeas corpus ad testificandum
is an “extraordinary measure” that should be taken only when
alternatives are insufficient:

      As compliance with writs of habeas corpus ad
      testificandum may be very costly, the district courts
      should consider alternatives to reduce the burdens
      compliance imposes, including: using a prisoner’s
      deposition in place of his trial testimony, arranging the
      trial schedule to reduce the amount of time a prisoner
      must be away from his place of confinement, and, in
      some cases, taking testimony at the prison, or
      transferring the place of trial to the federal courthouse
      nearest the state prison.
Rivera, 814 F.2d at 863, 864 n.8 (italics omitted). Careful consideration
of alternatives is especially important in a case involving a witness on
parole. In such a case, a writ of habeas corpus ad testificandum
requires a state officer to place new restrictions on the parolee’s
liberty by transporting and physically producing the parolee in
federal court.

      Given that he could participate electronically, Davidson failed
to demonstrate that his physical presence at his civil trial was
“necessary,” and accordingly he was not entitled to a writ of habeas
corpus ad testificandum.

                                   B

      Issuing the writ was not “necessary” for another reason: the
record does not establish that Davidson had fully and diligently
pursued other available avenues for obtaining authorization to come
to Buffalo. If he had sought such relief but been rejected, he could then

                                   17
argue to the district court that issuing a writ of habeas corpus ad
testificandum was “necessary” to ensure his physical presence at trial.

      But as the record stands, it is not clear that Davidson or his
counsel actually submitted a proper request to parole officials and, if
so, whether that request was ignored or rejected. Davidson claims he
diligently pursued permission from parole officials, but the record
does not establish that. Instead, it indicates that he was dilatory in
seeking approval and perhaps even thwarted his own counsel’s
attempts to do so. At the May 3, 2017, hearing, Davidson’s attorney
said, “We have asked Mr. Davidson to take the steps necessary with
his parole officer to have permission to come up here for the trial, and
that has yet to happen. We have written the parole officer. I haven’t
had any response. But I’m—we’ve encouraged Mr. Davidson over
and over again to get that permission.” App’x 46-47. On May 23, 2017,
Davidson’s counsel filed a motion stating: “I have been trying for over
six months to have my client obtain permission from New York State
Parole to attend the trial in person and also to obtain housing at a State
Parole Halfway House locally during the trial. I have had no success
to date. My client has not obtained permission to attend the trial from
New York State Parole.” App’x 73 (paragraph numbers omitted). The
attorney even “contacted [Davidson’s] supervisory Parole Officer by
email to request his assistance,” but Davidson himself “wrote a letter
to his supervisory Parole Officer telling him to ignore [his attorney’s]
email and claiming that [the attorney] had made false statements to
the Parole Officer.” App’x 74.

      Given this incomplete picture presented by Davidson and his
counsel—which is all the district court had before it regarding
Davidson’s attempts to obtain approval from parole officials—the
record is vague as to whether parole officials had actually denied
                                   18
permission to come to Buffalo, or instead whether Davidson had not
properly requested and pursued permission. Davidson never
submitted any documentation indicating that his request had actually
been denied, and the district court noted that Davidson had failed to
submit even basic information about the terms of his parole, including
“what the protocol is with respect to an individual seeking
permission to travel.” App’x 83. Nor did Davidson make any showing
to the district court about whether a New York state court could
modify his terms of parole to allow him to travel to the trial, and, if
so, whether he had pursued such relief. In such circumstances,
Davidson did not satisfy his burden of showing that it was
“necessary” to issue a writ of habeas corpus ad testificandum
mandating that his state custodian bring him to Buffalo.

       Because Davidson and his counsel did not demonstrate that
they had fully pursued available alternatives for obtaining
permission for Davidson to travel to Buffalo, issuing a writ of habeas
corpus ad testificandum was not “necessary.”

                                    ***

       For these reasons, even assuming Davidson’s request to the
district court is construed as a petition for a writ of habeas corpus ad
testificandum, the record confirms that Davidson failed to
demonstrate the necessity of issuing such a writ, as required by 28
U.S.C. § 2241(c)(5). 6


6 Davidson alternatively argues that the district court erred by failing to
conduct a hearing to ask parole officials about the status of his request for
permission to travel to Buffalo. He sought that relief on the opening day of
trial. Davidson provides no authority requiring a district court to hold a
hearing before denying a request for a writ of habeas corpus ad

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                                     III

       Even if the district court should have issued a writ of habeas
corpus ad testificandum and compelled Davidson’s attendance at his
own civil trial, we would still affirm because the court’s failure to do
so was harmless.

       A district court’s failure to issue a writ of habeas corpus ad
testificandum in a civil trial is harmless unless the witness’s physical
“presence would have substantially affected the outcome of [the]
trial.” Pollard, 738 F.2d at 1125; see also Bailey v. Blaine, 183 F. App’x
220, 223 (3d Cir. 2006) (“Although Brown and Byrd’s proffered
testimony appears to be relevant, our review of the trial transcript
indicates that it would not have affected the outcome of the trial and
that, therefore, the issuance of a writ of habeas corpus ad
testificandum was not required.”). Davidson fails to satisfy this
standard. He testified via video without issue and with his attorney
by his side, meaning the factfinder could see Davidson and make a
credibility determination. Davidson also listened by phone to the
remaining witnesses at trial. It is true that he missed portions of
Bennett’s and West’s testimony during the defendants’ case because
of a “problem at [Davidson’s] end with the phone.” App’x 360.
Davidson’s counsel did not object to proceeding with these witnesses,


testificandum. In any event, we find no reversible error given that it was
Davidson’s burden to demonstrate necessity before the trial; it was not the
burden of parole officials to disprove necessity in a separate hearing sought
after the trial was already underway. See United States v. Rinchack, 820 F.2d
1557, 1568 (11th Cir. 1987) (“[A] district court may refuse to issue a writ of
habeas corpus ad testificandum solely on the grounds that the petition is
untimely.”) (italics omitted). Furthermore, we find any error to be harmless.
See Part III, infra.

                                     20
and Davidson was able to connect with his counsel and discuss
strategy before Bennett’s cross-examination was finished, as well as
before West’s recross-examination, for which the district court gave
Davidson’s attorney additional leeway on the scope of questioning in
order to accommodate Davidson’s input to his counsel.

      Davidson was also able to talk privately by phone with his
counsel regarding the other defense witnesses before each witness
was excused. Davidson does not identify any topic, question, or
strategy he would have asked about or pursued differently if he had
been physically present in Buffalo rather than on the phone in New
York City. The full transcripts are now available, and he could review
those records and point to testimony he missed that was so important
that his physical absence from the courtroom at that time somehow
affected the outcome of the trial. But he offers no such showing, even
though    the   government’s     argument     on   appeal    centers   on
harmlessness.

      Without any showing that the outcome of the trial was different
as a result of his physical absence, Davidson cannot demonstrate
harmful error in the district court’s failure to issue a writ of habeas
corpus ad testificandum.

                            CONCLUSION

      Davidson had no constitutional right to attend his own civil
trial, but the district court had authority and discretion to issue a writ
of habeas corpus ad testificandum to compel Davidson’s physical
presence. Yet Davidson did not seek such relief before the district
court, and there was no plain error in the court’s failure to issue the
writ. Even if Davidson had sought the writ, he still failed to
demonstrate to the district court that issuing the writ was

                                   21
“necessary,” and even if Davidson had done so, there was no harmful
error in the district court’s failure to issue the writ. Accordingly, we
AFFIRM the district court’s judgment.




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