Ernest DeWayne Jones v. Robert K. Wong

Filing 71

OPPOSITION TO PETITIONER'S SUPPLEMENTAL BRIEF ON EFFECT OF CULLEN v. PINHOLSTER filed by Respondent Robert K. Wong. (Tetef, Herbert)

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1 2 3 4 5 6 7 8 9 KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General HERBERT S. TETEF Deputy Attorney General State Bar No. 185303 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-0201 Fax: (213) 897-6496 E-mail: DocketingLAAWT@doj.ca.gov Attorneys for Respondent 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 13 14 15 ERNEST DEWAYNE JONES, Petitioner, DEATH PENALTY CASE 16 17 18 19 20 21 22 23 24 25 26 27 28 CV-09-2158-CJC v. OPPOSITION TO PETITIONER’S SUPPLEMENTAL BRIEF ON THE MICHAEL MARTEL, Acting Warden of California State Prison at EFFECT OF CULLEN V. San Quentin, PINHOLSTER ON THE COURT’S Respondent. POWER TO GRANT AN EVIDENTIARY HEARING Honorable Cormac J. Carney United States District Judge 1 TABLE OF CONTENTS 2 3 4 5 6 Page Argument ................................................................................................................... 1 Under Pinholster, this Court’s examination of the reasonableness of the state court merits decision must be confined to the record before the state court; Petitioner’s request for an evidentiary hearing must therefore be denied ............................ 1 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i 1 TABLE OF AUTHORITIES 2 Page 3 C ASES 4 Atkins v. Clarke, 642 F.3d 47 (1st Cir. 2011) ....................................................................................................... 5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) .......................................................... 9 Coddington v. Cullen, No. CIV S-01-1290 KJM GGH DP, 2011 WL 2118855 (E.D. Cal. May 27, 2011) ........ 3, 8, 9 Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007)................................................................................................... 8 Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) ................................................... passim Earp v. Ornoski, 431 F.3d 1158 (9th Cir. 2005)................................................................................................... 5 Evans v. Thompson, 465 F. Supp. 2d 62 (D. Mass. 2006) ......................................................................................... 8 Evans v. Thompson, 518 F.3d 1 (1st. Cir. 2008) ....................................................................................................... 8 Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996) ........................................................ 8 Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) .............................................................. 5 In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509 (1993) .............................................................................. 6 In re Serrano, 10 Cal. 4th 447, 41 Cal. Rptr. 2d 695 (1995) ............................................................................ 7 Michael Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) ................................................ 3, 6, 7 Miller v. Marr, 141 F.3d 976 (10th Cir. 1998)................................................................................................... 8 Molo v. Johnson, 207 F.3d 773 (5th Cir. 2000)..................................................................................................... 8 ii 1 TABLE OF AUTHORITIES (continued) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Page Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003)................................................................................................... 5 Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011)..................................................................................................... 4 People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259 (1995) .............................................................................. 6 Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010) ............................................................ 9 Sanders v. Curtin, No. 08-CV-14448, 2011 WL 1753491 (E.D. Mich. May 9, 2011)........................................... 8 Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) ................................................ 2, 3, 4 Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) ............................................................ 3, 4 Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003) ........................................................................................................ 8 Wellons v. Hall, __ U.S. __, 130 S. Ct. 727, 175 L. Ed. 2d 684 (2010) .......................................................... 6, 7 Ybarra v. McDaniel, __F.3d__, No. 07-99019 ........................................................................................................... 3 STATUTES 28 U.S.C. § 2254(d)(1)........................................................................................................... passim 22 Antiterrorism and Effective Death Penalty Act of 1996 ................................................................. 1 23 R ULES OF C OURT 24 Fed. Rule Civ. Proc. 25(d) .............................................................................................................. 1 25 26 27 28 iii 1 Pursuant to this Court’s Order of April 6, 2011, Respondent Michael Martel, 2 the Acting Warden of San Quentin State Prison,1 submits this Opposition to 3 Petitioner Ernest Dewayne Jones’s Supplemental Brief on the Effect of Cullen v. 4 Pinholster on the Court’s Power to grant an Evidentiary Hearing. 5 6 ARGUMENT 7 9 UNDER PINHOLSTER, THIS COURT’S EXAMINATION OF THE REASONABLENESS OF THE STATE COURT MERITS DECISION MUST BE CONFINED TO THE RECORD BEFORE THE STATE COURT; PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING MUST THEREFORE BE DENIED 10 On April 4, 2011, the United States Supreme Court decided Cullen v. 8 11 Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), and resolved 12 what evidence should be examined when a federal court is determining whether a 13 state court’s resolution of the merits of a claim was reasonable under 28 U.S.C. § 14 2254(d)(1). The Pinholster Court held that federal review of the (d)(1) question “is 15 limited to the record that was before the state court that adjudicated the claim on the 16 merits.” Pinholster, 131 S. Ct. at 1398. The High Court observed that “[i]t would 17 be contrary to [the purpose of the Antiterrorism and Effective Death Penalty Act of 18 1996 (AEDPA)] to allow a petitioner to overcome an adverse state-court decision 19 with new evidence introduced in the federal habeas court.” Id. at 1399. AEDPA 20 review is necessarily “backward-looking.” Id. at 1398. In other words, it requires 21 “examination of the state-court decision at the time it was made” and “is limited to 22 the record in existence at that same time – i.e., the record before the state court.” 23 Id. 24 25 26 27 28 As such, no evidence developed in federal court can have any effect on the § 2254(d)(1) analysis. Consequently, “evidence adduced in federal court has no 1 Michael Martel is the Acting Warden of San Quentin State Prison. Substitution of the proper custodian’s name is authorized by Federal Rule of Civil Procedure 25(d). 1 1 bearing on § 2254(d)(1) review.” Pinholster, 131 S. Ct. at 1400. Put another way, 2 “evidence later introduced in federal court is irrelevant to § 2254(d)(1) review.” Id. 3 Given its interpretation of § 2254(d)(1), the Court in Pinholster found it 4 unnecessary to decide when “§ 2254(e)(2) prohibit[s] the District Court from 5 holding [an] evidentiary hearing.” Pinholster, 131 S. Ct. at 1411 n.20. The Court 6 observed, however, that it is “a fundamental misunderstanding of § 2254(e)(2)” to 7 suppose that § 2254(d)(1) must be read in a way that ‘accommodates’ § 8 2254(e)(2).” Id. at 1401 n.8. Instead, “[t]he focus of [§ 2254(e)(2)] is not on 9 ‘preserving the opportunity’ for hearings, [] but rather on limiting the discretion of 10 federal district courts in holding hearings.” Id. (emphasis in original). 11 The Court in Pinholster also found it unnecessary to confront directly 12 “whether a district court may ever choose to hold an evidentiary hearing before it 13 determines that § 2254(d) has been satisfied.” Pinholster, 131 S. Ct. at 1411 n.20. 14 But in combination, the Court’s case law makes the answer plain. As the Court has 15 stated, [A] federal court must consider whether such a hearing could 16 17 enable an applicant to prove the petition’s factual allegations, which, if 18 true, would entitle the applicant to federal habeas relief. Because the 19 deferential standards prescribed by § 2254 control whether to grant 20 habeas relief, a federal court must take into account those standards in 21 deciding whether an evidentiary hearing is appropriate. 22 Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 167 L. Ed. 2d 836 23 (2007). 24 Indeed, the Court made clear that “[a]lthough state prisoners may sometimes 25 submit new evidence in federal court, AEDPA’s statutory scheme is designed to 26 strongly discourage them from doing so.” Pinholster, 131 S. Ct. at 1401; see also 27 Landrigan, 550 U.S. at 475 (“If district courts were required to allow federal habeas 28 applicants to develop even the most insubstantial factual allegations in evidentiary 2 1 hearings, district courts would be forced to reopen factual disputes that were 2 conclusively resolved in the state courts.”). 3 In short, unless § 2254(d) is overcome, “there can be no additional 4 factfinding by the district court.” Ybarra v. McDaniel, __F.3d__, __, No. 07- 5 99019, 2011WL3890741 (9th Cir. Sept. 6, 2011), *14 n.3. If a petitioner fails to 6 overcome § 2254(d)’s limitation to federal relief, “a writ of habeas corpus ‘shall not 7 be granted’ and [the federal court’s] analysis is at an end.” Pinholster, 131 S. Ct. at 8 1411 n.20; see Coddington v. Cullen, No. CIV S-01-1290 KJM GGH DP, 2011 WL 9 2118855 (E.D. Cal. May 27, 2011), *1 (finding Pinholster “remarkable” for its 10 restrictions on the right to an evidentiary hearing). 11 Petitioner relies on Michael Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 12 1479, 146 L. Ed. 2d 435 (2000), for the proposition that, under § 2254(e)(2), a 13 district court has discretion to grant an evidentiary hearing as long as the petitioner 14 satisfied the “diligence” requirement by making a reasonable attempt to investigate 15 and pursue his claims in state court. (Pet. Brief at 5.) What the Supreme Court said 16 in Michael Williams was that a federal court is not barred from holding an 17 evidentiary hearing under § 2254(e)(2) where a state prisoner is “unable to develop 18 his claim in state court despite diligent effort.” Michael Williams v. Taylor, 529 19 U.S. at 436-37. Michael Williams was concerned with § 2254(e)(2), which, as 20 Pinholster recognized, limits the discretion of federal district courts to hold 21 hearings. Pinholster, 131 S. Ct. at 1401 n.8. Nothing in Michael Williams changes 22 the fact that the § 2254(e)(2) question is secondary to the § 2254(d)(1) question, 23 which is the threshold inquiry. Thus, Petitioner’s reliance on Michael Williams is 24 misplaced. 25 Petitioner contends that Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. 26 Ed. 2d 770 (1963) and Schriro v. Landrigan, 550 U.S. 465, support his right to an 27 evidentiary hearing. (Pet. Brief at 8.) Nothing in these Supreme Court decisions 28 provides authority for this Court ordering an evidentiary hearing absent Petitioner 3 1 satisfying the threshold determination required by § 2254(d). First, Townsend was 2 decided several decades before AEDPA was even enacted. It is axiomatic that a 3 decision issued before AEDPA’s enactment cannot serve to inform interpreting the 4 impact of AEDPA on the entitlement to an evidentiary hearing in a § 2254 5 proceeding. Petitioner’s reliance on Landrigan for the proposition that Townsend 6 still governs the determination of whether to grant an evidentiary hearing (Pet. Brief 7 at 8) ignores the fact that Landrigan held that habeas relief was barred by § 8 2254(d)(2), thus negating any need for a federal evidentiary hearing. Schriro v. 9 Landrigan, 550 U.S. at 474-81. Indeed, under Pinholster, “§ 2254(d)(1) bars a 10 district court from conducting such an evidentiary hearing because the statute 11 ‘requires an examination of the state court decision at the time it was made[.]’” 12 Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011). 13 Landrigan makes clear that a federal habeas court must take into account 14 “the deferential standards prescribed by § 2254,” in deciding the propriety of a 15 federal evidentiary hearing. Landrigan, 550 U.S. at 474. “In practical effect,” an 16 evidentiary hearing on the merits is useless, and therefore an abuse of discretion, 17 when a petitioner’s habeas claim is barred at the threshold. Pinholster, 131 S. Ct. at 18 1399. Thus, if the merits of a claim may not be litigated because of a threshold bar, 19 no showing of an entitlement to habeas relief could be made at an evidentiary 20 hearing. See Schriro v. Landrigan, 550 U.S. at 474; see also Pinholster, 131 S. Ct. 21 at 1402 n.11. Therefore, to answer the question whether factual development on 22 the merits is warranted, the § 2254(d) question must be answered first. 23 Pinholster illustrates the point. In Pinholster, while no evidentiary hearing 24 was held in state court, an evidentiary hearing was held in the district court, and the 25 new evidence taken in the federal hearing was relied upon by the federal court to 26 find both that the petitioner had overcome the relitigation bar of § 2254(d)(1), and 27 that his claim succeeded on the merits. Pinholster, 131 S. Ct. at 1396-97. On 28 review, the Supreme Court held that the § 2254(d)(1) inquiry is limited to the 4 1 record that was before the state court that adjudicated the claim on its merits. Id. at 2 1398. Consequently, the evidentiary development undertaken in the district court 3 was irrelevant to the threshold bar issue. The Court found that relitigation on the 4 merits was prohibited by § 2254(d)(1), and then observed that “[this] brings our 5 analysis to an end. Even if the evidence adduced for the first time in the District 6 Court supported the petitioner’s claims, the federal court was precluded from 7 considering it.” Pinholster, 131 S. Ct. at 1402 n.11. In other words, developing 8 new evidence or facts in federal court that cannot be considered for purposes of 9 granting relief would be a wasted exercise and an abuse of discretion in light of an 10 applicable threshold bar. See Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011) 11 (Pinholster overrules full and fair hearing requirement as to claims asserted under § 12 2254(d)(1)). 13 Petitioner insists that Pinholster did not affect his right to an evidentiary 14 hearing under Ninth Circuit law. (Pet. Brief at 9-10.) Petitioner’s reliance on any 15 Ninth Circuit authority to support a grant of an evidentiary hearing absent 16 sustaining his burden under § 2254(d) is inappropriate, as that authority is 17 necessarily abrogated by the holding in Pinholster. For example, Petitioner relies 18 on Nunes v. Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003), and Earp v. Ornoski, 19 431 F.3d 1158, 1167 (9th Cir. 2005), for the proposition that a summary denial in 20 state court is the equivalent of an unreasonable adjudication of facts under § 21 2254(d)(2), which allows for an evidentiary hearing in federal court. (Pet. Brief at 22 10.) The short answer to this contention is that § 2254(d)(2) is inapplicable to a 23 summary denial because the denial does not constitute a determination of the 24 validity of any facts -- a summary denial assumes that all of the petitioner’s facts 25 are true, and that the claim fails. What the decisions in Pinholster and Harrington 26 v. Richter, __ U.S. __, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011), make clear is that 27 state court summary denials of habeas corpus claims are governed by § 2254(d)(1), 28 not § 2254(d)(2). Indeed, the United States Supreme Court was fully aware of 5 1 California’s practice of adjudicating habeas corpus claims based on assumed facts. 2 Under California law, the court presumes that the well pleaded factual allegations in 3 a petition are true, so that the petitioner need not prove them in the petition. See 4 People v. Duvall, 9 Cal. 4th 464, 474-75, 37 Cal. Rptr. 2d 259 (1995) (“An 5 appellate court . . . [asks] whether, assuming the petition’s factual allegations are 6 true, the petitioner would be entitled to relief”); In re Clark, 5 Cal. 4th 750, 769 7 n.10, 21 Cal. Rptr. 2d 509 (1993) (court reviews petition to see “whether petition 8 states a prima facie case for relief, i.e., whether it states facts which, if true, entitle 9 the petitioner to relief” (citation omitted)). In Pinholster, the Court cited 10 California’s general habeas practice rule with approval. Id., 131 S. Ct. at 1402-03, 11 n.12.2 12 Relying on Michael Williams v. Taylor, 529 U.S. 420, and Wellons v. Hall, 13 __ U.S. __, 130 S. Ct. 727, 175 L. Ed. 2d 684 (2010) (per curiam), Petitioner 14 contends that he is entitled to an evidentiary hearing because the state court failed 15 to afford him a fair opportunity to develop and present the facts supporting his 16 claims. (Pet. at 11-13.) However, in denying Petitioner’s habeas corpus petition, 17 the California Supreme Court assumed the truth of the factual allegations that 18 Petitioner alleged. Thus, Petitioner’s claims were put in the best possible factual 19 posture and Petitioner in effect received the benefit of an evidentiary hearing. In 20 21 22 23 24 25 26 27 28 2 During oral argument, the Chief Justice pointed out to Pinholster’s counsel the advantage state habeas practitioners have in California when alleged facts are assumed true. In defending the Ninth Circuit Court of Appeal’s reliance on new evidence presented in federal court, Pinholster’s counsel denigrated California’s habeas procedures: [Respondent’s counsel Sean Kennedy]: “But turning to the new evidence, there is a reason things like this happen. In California, the claim was denied without any hearing and without any explanation. And then the -- the case moved to Federal court. . . .” [Chief Justice John G. Roberts]: “Just to pause for a moment, you said there was no hearing in the State court. Well, that was because the State court, pursuant to the established procedures, assumed everything you wanted to show was true. It's a little bit much. I mean, you were not going to be in any better position after a hearing than you were before the State court.” http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx (09-1088, Cullen v. Pinholster transcript at 30.) 6 1 light of this, nothing in Michael Williams supports Petitioner’s claim for an 2 evidentiary hearing. 3 Petitioner’s reliance on Wellons is also misplaced. In Wellons, the petitioner 4 alleged a claim relating to ex parte contacts between the judge and the jury. There 5 was no record on which to raise the issue on appeal, and the claim was then 6 inexplicably deemed procedurally barred under the doctrine of res judicata by the 7 state court on habeas. Wellons v. Hall, 130 S. Ct. at 728. The majority in Wellons 8 stated that “it would be bizarre if a federal court had to defer to state-court factual 9 findings, made without an evidentiary record.” Id. at 730 n.3. Petitioner fails to 10 explain how the observation in Wellons relates to his claims pending before this 11 Court. All of Petitioner’s claims were denied by the state court on the merits after 12 the state court assumed the truth of his allegations. 13 Petitioner also argues that the state habeas record in this case is significantly 14 different from the one the California Supreme Court reviewed in Pinholster 15 because, there, the state court issued an Order to Show Cause, but the state court in 16 Petitioner’s case deprived Petitioner of an opportunity to develop his claims. (Pet. 17 Brief at 13.) This is a distinction without a difference. In Pinholster, the California 18 Supreme Court initially issued an Order to Show Cause but later retracted it as 19 improvidently granted. Pinholster, 131 S. Ct. at 1396 n.1. The issuance of the 20 Order to Show Cause did not establish a prima facie determination that Pinholster 21 was entitled to the relief requested; instead, it only established “a preliminary 22 determination” that a prima facie case existed. In re Serrano, 10 Cal. 4th 447, 454- 23 55, 41 Cal. Rptr. 2d 695 (1995). The subsequent withdrawal of the Order to Show 24 Cause as improvidently granted resulted in a summary denial, just as in this case. 25 Petitioner claims that applying § 2254(d) to preclude an evidentiary hearing 26 when he was unable to fully develop facts in state court violates the Suspension 27 Clause. (Pet. Brief at 16, n.11.) Petitioner is wrong. The Supreme Court made it 28 clear over a decade ago that AEDPA does not violate the Suspension Clause even 7 1 though “it does affect the standards governing the granting of such relief.” Felker 2 v. Turpin, 518 U.S. 651, 654, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). The Ninth 3 Circuit Court of Appeals, citing Felker, has similarly held that § 2254(d)(1)’s 4 restriction of habeas relief to state court decisions that are contrary to or an 5 unreasonable application of clearly established federal law is not an 6 unconstitutional suspension of the writ because it “simply modifies the 7 preconditions for habeas relief, and does not remove all habeas jurisdiction.” 8 Crater v. Galaza, 491 F.3d 1119, 1125-26 (9th Cir. 2007).3 Certainly, denying 9 Petitioner an evidentiary hearing when he cannot meet the required threshold 10 showing that the state court decision was unreasonable within the meaning of § 11 2254(d) does not violate the Suspension Clause. See Sanders v. Curtin, No. 08- 12 CV-14448, 2011 WL 1753491, at *12, *22 (E.D. Mich. May 9, 2011) (holding that 13 Pinholster precludes a hearing or considering evidence not presented to state court, 14 and denying claim that AEDPA violates the Suspension Clause). 15 Petitioner’s claim that he is entitled to an evidentiary hearing to develop new 16 evidence and/or additional claims to be presented to the state court (Pet. Brief at 16- 17 17) is meritless. The Supreme Court made it clear in Pinholster that Congress did 18 not enact AEDPA in order to have federal courts developing claims to then be 19 presented to state courts. Rather, AEDPA’s provisions are designed to “ensure that 20 ‘[f]ederal courts sitting in habeas are not an alternative forum for trying facts and 21 issues which a prisoner made insufficient effort to pursue in state proceedings.’” 22 Pinholster, 131 S. Ct. at 1401, quoting Michael Williams v. Taylor, 529 U.S. at 429. 23 In Coddington v. Cullen, the court described such an approach as “turn[ing] the 24 25 26 27 28 3 Accord Evans v. Thompson, 518 F.3d 1, 11-12 (1st. Cir. 2008), affirming Evans v. Thompson, 465 F. Supp. 2d 62 (D. Mass. 2006) (rejecting Suspension Clause and due process claims). Indeed, even those portions of AEDPA that completely bar federal habeas review do not violate the Suspension Clause. Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003) (restrictions on successive petitions do not violate Suspension Clause); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (statute of limitations does not violate Suspension Clause); Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir. 1998) (same). 8 1 entire federal habeas process on its head.” Id., 2011 WL 2118855, *3. It also 2 explained that “[t]o place the federal courts in the position of a handmaiden to the 3 state courts, i.e., the fact developer, would require an entire revamping of federal 4 law.” Id. 5 Petitioner argues that briefing the application of § 2254(d) before conducting 6 an evidentiary hearing would be premature and contrary to the goal of judicial 7 efficiency. (Pet. Brief at 17-18.) Just the opposite is true. Conducting an 8 evidentiary hearing before a petitioner satisfies the “threshold restrictions” set forth 9 in § 2254(d), Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1862 n.1, 176 L. Ed. 2d 10 678 (2010), would be an utter waste of judicial resources, since a petitioner’s 11 inability to satisfy §2254(d) would end the litigation. Pinholster, 131 S. Ct. at 1411 12 n.20 (if § 2254(d) is not overcome, the writ of habeas corpus cannot be granted and 13 the court’s analysis is at an end). Furthermore, in every instance where a petitioner 14 is allowed to develop evidence for the first time in federal court without passing 15 through the “threshold restrictions” of § 2254(d), the deference standard is being 16 improperly forced to “accommodate” and “preserve” the “opportunity” for future 17 litigation and possible evidentiary hearings. Pinholster, 131 S. Ct. at 1411 n.20. 18 Such factual development will needlessly prolong resolution of the case on claims 19 upon which Pinholster precludes relief based solely on the state court record. It 20 would therefore be an abuse of discretion to develop evidence before conducting 21 the § 2254(d) inquiry. Delaying resolution of such claims conflicts with AEDPA’s 22 legislative purpose “‘to reduce delay in the execution of state and federal criminal 23 sentences, particularly in capital cases . . .’” Baze v. Rees, 553 U.S. 35, 69-70, 128 24 S. Ct. 1520, 170 L. Ed. 2d 420 (2008). 25 /// 26 /// 27 /// 28 9 1 2 3 4 For the above reasons, Petitioner’s request for an evidentiary hearing must be denied. Dated: September 14, 2011 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KEITH H. BORJON Supervising Deputy Attorney General 5 6 7 8 9 10 /s/ Herbert S. Tetef HERBERT S. TETEF Deputy Attorney General Attorneys for Respondent 11 12 13 14 15 16 LA2009505879 50972011.doc 17 18 19 20 21 22 23 24 25 26 27 28 10

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