Lewis v. Woodford

Filing 168

ORDER signed by Magistrate Judge Gregory G. Hollows on 04/19/11 ordering the parties shall within 21 days of the filed date of this order, file concise simultaneous brief concerning Cullen v. Pinholster US, 131 S.Ct. 1388 (2011) invalidates this cour t's order for an evidentiary hearing, i.e. whether all issues on which an evidentiary hearing was granted were 28 USC 2254(d)(1) issues which should be reviewed solely on the factual record set forth in state court either during trial, direct re view, or in state habeas proceedings. The parties shall also brief whether respondent is bound by Cullen or whether Cullen only applies to potential grants of a petition as opposed to potential denials. If respondent argues that respondent is not bound by Cullen, respondent shall indicate whether respondent desires an evidentiary hearing, and on what issues.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILTON OTIS LEWIS,

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Petitioner,

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No. CIV S-02-0013 FCD GGH DP

vs.

DEATH PENALTY CASE

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ROBERT AYERS, Warden

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Respondent.

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ORDER
/

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The parties shall, within twenty-one days of the filed date of this order, file

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concise simultaneous briefs concerning whether Cullen v. Pinholster, –U.S.–, 131 S.Ct. 1388

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(2011) invalidates this court’s order for an evidentiary hearing, i.e., whether all issues on which

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an evidentiary hearing was granted were 28 U.S.C. § 2254(d)(1) issues which should be reviewed

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solely on the factual record set forth in state court either during trial, direct review, or in state

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habeas proceedings. The parties shall also brief whether respondent is bound by Cullen or

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whether Cullen only applies to potential grants of a petition as opposed to potential denials. See

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28 U.S.C. § 2254(d): “an application for a writ of habeas corpus...shall not be granted with

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respect to any claim...” If respondent argues that respondent is not bound by Cullen, respondent

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shall indicate whether respondent desires an evidentiary hearing, and on what issues.1

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Dated: 04/19/2011
/s/ Gregory G. Hollows
_____________________________
UNITED STATES MAGISTRATE JUDGE

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lewis0013.brf

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If respondent requests an evidentiary hearing on any issue, and the court determines that
respondent is entitled to such a hearing, the court shall afford petitioner the opportunity to fully
factually respond at such a hearing.
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