Perez v. Bitter

Filing 40

ORDER Deferring Consideration Of Petitioner's Motions For An Evidentiary Hearing And For Expansion Of The Record Until The Court Considers The Merits Of The Petition (Doc. 37 ), signed by Magistrate Judge Sheila K. Oberto on 2/13/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CESAR MELGOZA PEREZ,
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Petitioner,
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v.
M. D. BITER, Warden,
Respondent.

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1:11-cv—01766-LJO-SKO-HC
ORDER DEFERRING CONSIDERATION OF
PETITIONER’S MOTIONS FOR AN
EVIDENTIARY HEARING AND FOR
EXPANSION OF THE RECORD UNTIL THE
COURT CONSIDERS THE MERITS OF THE
PETITION (DOC. 37)

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a second amended petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254.

The matter has been

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referred to the Magistrate Judge pursuant to 28 U.S.C.
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§ 636(b)(1) and Local Rules 302 and 303.

Pending before the

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Court are Petitioner’s requests for 1) an evidentiary hearing
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with oral argument and appointment of counsel for the evidentiary
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hearing, and 2) expansion of the record.

Petitioner’s motions

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were filed on December 10, 2012.

Respondent filed an opposition

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on December 31, 2012; Petitioner did not file a reply.
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I.

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Petitioner challenges his conviction of first degree murder,

Background

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alleging that he suffered numerous violations of his

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constitutional rights during his pretrial and trial proceedings.

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The second amended petition was filed on or about June 20, 2012.

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Respondent filed an answer on September 20, 2012; Petitioner

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filed a traverse on December 14, 2012.

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reflects that Petitioner’s claims appear to have been adjudicated

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on the merits by the state courts.

Review of the answer

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In his motions for an evidentiary hearing and expansion of

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the record, Petitioner seeks to add to the record a declaration

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to present the testimony of a person who will verify that at the

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time of the incident in question, Petitioner was not the shooter.

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Petitioner further seeks to add his own declaration to establish

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he was not armed with a firearm, did not discharge a firearm, did

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not commit the charged murder, and was not associated with a

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criminal street gang.

(Doc. 37, 1.)

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II.

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The decision to grant an evidentiary hearing is generally a

Legal Standards

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matter left to the sound discretion of the district courts.

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U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S.

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465, 473 (2007).

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docket and the disposition of its cases with economy of time and

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effort for both the court and the parties.

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American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260 (9th Cir. 1992).

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A court has inherent power to control its

Landis v. North

Because the petition was filed after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies to the petition.

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Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d

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1484, 1499 (9th Cir. 1997).

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federal court under the AEDPA, a petitioner must allege a

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colorable claim by alleging disputed facts which, if proved,

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would entitle him to relief.

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474.

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Lindh v.

To obtain an evidentiary hearing in

Schriro v. Landrigan, 550 U.S. at

The determination of entitlement to relief is limited by 28
U.S.C. § 2254(d)(1), which requires that to obtain relief with

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respect to a claim adjudicated on the merits in state court, the

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adjudication must result in a decision that was either contrary

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to, or an unreasonable application of, clearly established

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federal law.

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analyzing a claim pursuant to § 2254(d)(1), a federal court is

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limited to the record that was before the state court that

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adjudicated the claim on the merits.

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S.Ct. 1388, 1398 (2011).

Schriro v. Landrigan, 550 U.S. at 474.

In

Cullen v. Pinholster, 131

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Thus, when a state court record precludes habeas relief

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under the limitations set forth in § 2254(d), a district court is

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not required to hold an evidentiary hearing.

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Pinholster, 131 S.Ct. at 1399 (citing Schriro v. Landrigan, 550

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U.S. at 474); see, Stokley v. Ryan, 659 F.3d 802, 808-09 (9th

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Cir. 2011), cert. den., 133 S.Ct. 134 (2012).

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hearing may be granted with respect to a claim adjudicated on the

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merits in state court where the petitioner satisfies

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§ 2254(d)(1), or where § 2254(d)(1) does not apply, such as where

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the claim was not adjudicated on the merits in state court.

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Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01.
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Cullen v.

An evidentiary

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An evidentiary hearing is not required where the state court

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record resolves the issues, refutes the application’s factual

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allegations, or otherwise precludes habeas relief.

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Landrigan, 550 U.S. at 474.

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for claims based on conclusory allegations.

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F.3d 662, 679 (9th Cir. 1994).

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is not required if the claim presents a purely legal question,

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there are no disputed facts, or the state court has reliably

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found the relevant facts.

Schriro v.

No evidentiary hearing is required
Campbell v. Wood, 18

Likewise, an evidentiary hearing

Beardslee v. Woodford, 358 F.3d 560,

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585-86 (9th Cir. 2004); Hendricks v. Vasquez, 974 F.2d 1099, 1103

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(9th Cir. 1992).

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With respect to expansion of the record, pursuant to Cullen

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v. Pinholster, 131 S. Ct. 1388, evidentiary materials that have

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not been presented to the state courts are not relevant to an

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analysis pursuant to 28 U.S.C. § 2254(d) because review is

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limited to the record that was before the state courts.

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Runningeagle v. Ryan, 686 F.3d 758, 767 n.2 (9th Cir. 2012), pet.

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for cert. filed

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III.

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As the foregoing authorities reflect, in most instances it

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is not possible to consider a motion for an evidentiary hearing

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or expansion of the record before the merits of the petition are

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considered.

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on the merits because the Court has before it other petitions

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that predate Petitioner’s petition and became ready for decision

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before Petitioner’s second amended petition was fully briefed.

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However, at this point in the proceedings, Petitioner’s claims

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must be analyzed on the merits for the Court to determine whether

No. 12-894 (Nov. 15, 2012).

Analysis

Here, the Court has not reviewed Petitioner’s claims

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Petitioner is entitled to relief pursuant to 28 U.S.C. § 2254(d).

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Further, from the pleadings, Petitioner’s claims may be subject

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to resolution on the state court record, and thus further

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evidence or development of the record would not be required.

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Likewise, because the evidence Petitioner seeks to include in the

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record was not before the state courts, it is not relevant to

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this Court's analysis pursuant to 28 U.S.C. § 2254.

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Accordingly, in the exercise of the Court’s discretion, it
is ORDERED that consideration of Petitioner’s motion for an

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evidentiary hearing, oral argument, appointment of counsel for

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the purpose of an evidentiary hearing, and expansion of the

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record is DEFERRED until the merits of Petitioner’s case are

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considered.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 13, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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