Carroll v. Diaz

Filing 30

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/2/2013 ORDERING that petitioner's 27 request for evidentiary hearing is DENIED without prejudice to the court's sua sponte reconsideration should the court conclude that an evidentiary hearing is necessary upon consideration of the merits of petitioner's claims. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES E. CARROLL,

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No. 12-cv-2736 TLN GGH P

Petitioner,

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v.

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DIAZ, Warden,

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ORDER

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 evidentiary hearing. Respondent

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has filed an opposition.1
Pursuant to 28 U.S.C. § 2254, an evidentiary hearing is appropriate under the following

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circumstances:

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(e)(2) If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that-

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(A) the claim relies on-

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(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or

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The habeas petition was submitted after an opposition and traverse were filed, on March 27
and May 28, 2013, respectively.
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(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

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(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable fact finder would have
found the applicant guilty of the underlying offense[.]

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Under this statutory scheme, a district court presented with a request for an evidentiary

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hearing must first determine whether a factual basis exists in the record to support a petitioner’s

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claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. Ducharme,

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187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.

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2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting

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an evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.”

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Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d

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706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show

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that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would

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entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation

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marks and citation omitted).
In addition, and greatly constraining the above authority, the Supreme Court has recently

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held that federal habeas review under 28 U.S.C. § 2254(d)(1) “is limited to the record that was

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before the state court that adjudicated the claim on the merits” and “that evidence introduced in

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federal court has no bearing on” such review. Cullen v. Pinholster, 563 U.S. ___, ___, 131 S. Ct.

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1388, 1398, 1400 (2011). The issues presented by the instant petition are § 2254(d)(1) issues, and

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no evidentiary hearing could be granted until the court found that the state courts acted

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unreasonably on the record before them.
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 is a factual dispute necessitating an

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evidentiary hearing or supplementation of the record in this case. Following such a review, the

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court will sua sponte issue an order for an evidentiary hearing should it find that such a hearing is

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necessary. Accordingly, the request for an evidentiary hearing will be denied at this time without

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prejudice to its sua sponte renewal by the court.2

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

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hearing, filed August 19, 2013, (ECF No. 27), is denied without prejudice to the court’s sua

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sponte reconsideration should the court conclude that an evidentiary hearing is necessary upon

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consideration of the merits of petitioner’s claims.

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Dated: October 02, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076

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To the extent petitioner’s request can be construed as a request for discovery, it is also denied as
premature. Petitioner is advised that parties in a habeas proceeding are not entitled to discovery
as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997); Bittaker v. Woodford, 331
F.3d 715, 728 (9th Cir.), cert. denied 540 U.S. 1013 (2003). Rather, “[a] party shall be entitled to
invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to
the extent that, the judge in the exercise of his [or her] discretion and for good cause shown grants
leave to do so, but not otherwise.” Rule 6(a), Rules Governing § 2254 Cases. See also Bracy,
520 U.S. at 904. Good cause is shown “where specific allegations before the court show reason
to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is
. . . entitled to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300
(1969)). See also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2004). Nonetheless, in order to
obtain discovery a petitioner need not demonstrate that he will prevail on the claim underlying the
discovery request. See Bracy, 520 U.S. at 909; Pham, 400 F.3d at 743. A request for discovery
“must also include any proposed interrogatories and requests for admission, and must specify any
requested documents.” Rule 6(b), Rules Governing § 2254 Cases. Federal courts have “the
power to ‘fashion appropriate modes of procedure,’ including discovery, to dispose of habeas
petitions ‘as law and justice require[.]’” Bracy, 520 U.S. at 904 (citations omitted) (quoting
Harris, 394 U.S. at 299-300). See also Bittaker, 331 F.3d at 728. Finally, the Supreme Court has
recently held that in habeas cases governed by 28 U.S.C. § 2254(d)(1), federal courts generally
cannot consider evidence that was not before the state court. See Cullen v. Pinholster,
___U.S.___, ___, 131 S. Ct. 1388, 1398 (2011). The impact of that holding on the availability of
discovery in connection with federal habeas proceedings is an issue that has not yet been fully
resolved. See Steele v. Warden, San Quentin State Prison, No. Civ. S-03-0143 GEB CKD, 2011
WL 4006527, at *1-2 (E.D. Cal. Sept. 8, 2011).
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