Harmless v. Lizzaraga

Filing 57

ORDER signed by Magistrate Judge Deborah Barnes on 08/21/18 DENYING 52 Motion for an evidentiary hearing. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD MARTIN HARMLESS,

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Petitioner,

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No. 2:14-cv-0223 JAM DB P

v.

ORDER

J. LIZZARAGA, WARDEN,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, seeks relief pursuant to 28 U.S.C. § 2254.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. o§ 636(b)(1).

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On October 25, 2017, petitioner filed a motion for an evidentiary hearing. (ECF No. 52).

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It is the second one that he has filed in this court in the past year. (See ECF No. 36 (petitioner’s

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December 2016 evidentiary hearing motion)). On November 29, 2017, respondent filed an

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opposition to petitioner’s second motion for an evidentiary hearing. (ECF No. 55). Petitioner did

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not file a reply. For the reasons stated below, the court will deny petitioner’s second motion for

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an evidentiary hearing as premature.

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I.

RELEVANT FACTS
On December 27, 2016, petitioner filed his first motion for an evidentiary hearing in this

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court. (See ECF No. 36). In it, he argued that a hearing was necessary because facts gleaned

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from it would support the ineffective assistance of counsel and prosecutorial misconduct claims

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(Claims 10 and 13) in his second amended petition. (See generally ECF No. 36).

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Respondent opposed the motion on January 26, 2017. (See ECF No. 43). Respondent

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argues that: (1) under 28 U.S.C. § 2254(d) the evidence petitioner hoped to obtain from the

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evidentiary hearing was barred as irrelevant given that Section 2254(d) analysis is limited to the

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record that was before the state court when it adjudicated the claims on the merits, and (2) under

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28 U.S.C. § 2254(e) petitioner was at fault for failing to develop the new evidence in state court.

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(See ECF No. 43 at 1-5).
On June 30, 2017, this court denied petitioner’s motion. (ECF No. 51). Citing to Cullen

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v. Pinholster, 563 U.S. 170 (2011) and Schriro v. Landrigan, 550 U.S. 465 (2007), this court

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found that when determining whether an evidentiary hearing is warranted under 28 U.S.C.

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2254(e)(2), it is obligated to consider the standards for habeas relief under 28 U.S.C. 2254(d).

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(See ECF No. 51 at 5). Considering this overlap as well as the demand on its docket, the court

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opted to defer its decision on the appropriateness of an evidentiary hearing under Section 2254(e)

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until it conducted a Section 2254(d) analysis. (See ECF No. 51 at 5). Thus, whether an

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evidentiary hearing was appropriate was to be determined at the time the court addressed the

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entire petition on its merits. (See ECF No. 51 at 6).

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II.

ANALYSIS
A review of the instant motion for an evidentiary hearing as well as respondent’s

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opposition indicates that both parties’ arguments are substantively the same as those argued when

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petitioner filed the first motion for an evidentiary hearing. (Compare ECF No. 36, with ECF No.

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52; compare also ECF No. 43, with ECF No. 55). Therefore, the court’s decision is the same:

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The court will address petitioner’s motion for a preliminary hearing at the same time it addresses

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the merits of the entire petition.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for an evidentiary

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hearing (ECF No. 52) is DENIED without prejudice as premature.

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Dated: August 21, 2018

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DLB:13
DB/ORDERS/ORDERS.PRISONER.HABEAS/harm0223.2254e2.den

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