Bunn v. Ryan et al

Filing 21

ORDER denying 17 Petitioner's Motion for Evidentiary Hearing and Oral Argument. Signed by Magistrate Judge Lawrence O Anderson on 10/17/13.(TLJ)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Otis Eugene Bunn,
Petitioner,

10
11

vs.

12

Charles L. Ryan, et al.,

13
14

Respondents.

)
)
)
)
)
)
)
)
)
)
)

No. CV-12-2114-PHX-GMS (LOA)
ORDER

15

This matter is before the Court on Petitioner’s Requests for Evidentiary Hearing and

16

Oral Argument. (Doc. 17) Respondents have filed an Opposition to Motion for Evidentiary

17

Hearing, and Petitioner has filed a Reply. (Docs. 18, 19)

18

On October 11, 2013, the undersigned Magistrate Judge issued a Report and

19

Recommendation in this case, recommending Petitioner’s Petition for Writ of Habeas Corpus

20

be denied as untimely because it was not filed within with the applicable statute of limitations

21

period. (Doc. 20) In a separately filed motion, Petitioner requested an evidentiary hearing on

22

his claims. (Doc. 17) Specifically, Petitioner’s motion focuses on his claim in Ground One of

23

the Petition, which alleges a claim of ineffective assistance of counsel based on a conflict of

24

interest. Petitioner seeks to present evidence pertaining to that claim. (Id.)

25

As the Report and Recommendation indicates, this Magistrate Judge did not reach the

26

merits of any of Petitioner’s claims because the record clearly shows the Petition was untimely

27

filed. (Doc. 20) Accordingly, an evidentiary hearing on the merits of Petitioner’s claims is

28

unnecessary. See Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (a habeas petitioner is

1

not entitled to an evidentiary hearing where his petition fails to raise any colorable claims for

2

relief) The request for an evidentiary hearing will be denied.

3

Likewise, Petitioner’s request for oral argument will be denied. The Court has

4

discretion to grant or deny a request for oral argument. See LRCiv. 7.2(f) (“The Court may

5

decide motions without oral argument.”); see also Mahon v. Credit Bur. of Placer County, Inc.,

6

171 F.3d 1197, 1200 (9th Cir. 1999); Spradlin v. Lear Siegler Management Services Co., 926

7

F.2d 865, 867 (9th Cir. 1991) (holding that denial of request for oral argument is reviewed for

8

abuse of discretion). Here, in light of the clear record showing the Petition was untimely, the

9

Court finds no basis to hold oral argument on the instant motion.

10

Accordingly,

11

IT IS ORDERED that Petitioner’s “Requests for Evidentiary Hearing and Oral

12
13

Argument,” doc. 17, is DENIED.
DATED this 17th day of October, 2013.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-