Jones v. Virga

Filing 24

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/15/2013 ORDERING that petitioner's 23 request for permission to expand the record is DENIED without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY WAYNE JONES,

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Petitioner,

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v.

No. 2:12-cv-1138 LKK GGH P

ORDER

TIM VIRGA, et al.,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner has filed a request for permission to expand the record,

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seeking court permission to include his attached declaration and exhibits for consideration in

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regard to his submitted habeas petition.

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“Rule 7 of the Rules Governing § 2254 cases allows the district court to expand the record

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without holding an evidentiary hearing.” Libberton v. Ryan, 583 F.3d 1147, 1165 (9th Cir. 2009)

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(quoting Cooper–Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005)). However, in order to

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supplement the record with new evidence, “a petitioner must meet the same standard that is

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required for an evidentiary hearing” set forth in 28 U.S.C. § 2254(e). Libberton, 583 F.3d at 1165

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(citing Cooper–Smith, 397 F.3d at 1236.) In order to be awarded an evidentiary hearing, a

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petitioner must either: (1) satisfy the requirements of 28 U.S.C. § 2254(e), or (2) show that he

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‘exercised diligence in his efforts to develop the factual basis of his claims in state court
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proceedings.’ Id. at 1165 (citations omitted); see also Holland v. Jackson, 542 U.S. 649, 652-53,

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124 S. Ct. 2736, 159 L.Ed.2d 683 (2004).

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However, after the above authority was decided, the Supreme Court has greatly restricted

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the ability to expand the record or have an evidentiary hearing. Supplementation of the record is

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very unlikely, however, in that the Supreme Court has recently held that federal habeas review

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under 28 U.S.C. § 2254(d)(1) “is limited to the record that was before the state court that

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adjudicated the claim on the merits” and “that evidence introduced in federal court has no bearing

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on” such review. Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398, 1400 (2011).

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Until this court has the opportunity to conduct a thorough review of the potential merits of

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petitioner’s claims, the court cannot determine whether there exists the potential, slim as it is,

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necessitating supplementation of the record in this case. Following such a review, the court will

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sua sponte issue an order addressing the request to expand the record. Accordingly, the request to

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expand the record will be denied at this time without prejudice to its sua sponte renewal by the

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court.

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Accordingly, IT IS HEREBY ORDERED that: Petitioner’s request for permission to

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expand the record, filed July 24, 2013, (ECF No. 23), is denied without prejudice to the court’s

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sua sponte reconsideration should the court conclude that expansion of the record is necessary

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upon consideration of the merits of petitioner’s claims.

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Dated: October 15, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Jone1138.exp-rec

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