King v. Lamarque

Filing 126

ORDER SCHEDULING EVIDENTIARY HEARING: Evidentiary hearing set for 4/8/09 at 10:00 a.m.. (SI, COURT STAFF) (Filed on 3/9/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES EDWARD KING, v Petitioner, No. C 00-01988 SI ORDER SCHEDULING EVIDENTIARY HEARING

MICHAEL S. EVANS, Warden, Respondent. /

The Court has considered the parties' letter briefs, filed February 13 and 21, and has determined that an evidentiary hearing is necessary in order to evaluate petitioner's claim for ineffective assistance of counsel on the basis of his trial attorney's failure to either consult a medical sexual assault expert or to present expert witness testimony in his defense. The Court recognizes that "a federal court may not grant an evidentiary hearing without first determining whether the state court's decision was an unreasonable determination of the facts." Earp v. Ornoski, 431 F.3d 1158, 1166-67 (9th Cir. 2005). A petitioner is entitled to an evidentiary hearing, however, if he can show that "the merits of the factual dispute were not resolved in the state hearing . . . ." Id. at 1167 (citation omitted). In this case it is uncontested that the California courts denied the claims at issue here solely on procedural grounds without reaching the merits. Accordingly, the Court concludes that petitioner is entitled to an evidentiary hearing. An evidentiary hearing shall be conducted at 10:00 a.m. on April 8, 2009. As discussed in the parties' letter briefs, petitioner's witnesses will be John Howell (petitioner's trial counsel) and Lee Coleman, M.D. (petitioner's medical expert); respondent will offer Dr. Valerie Barnes as a medical expert. IT IS SO ORDERED. Dated: March 9, 2009 SUSAN ILLSTON United States District Judge