Bluitt v. Martel

Filing 36

ORDER DIRECTING PETITIONER TO FILE TRAVERSE. Signed by Judge James Ware on 12/8/11. (Attachments: # 1 Certificate/Proof of Service)(sis, COURT STAFF) (Filed on 12/14/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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GREGORY BLUITT,
Petitioner,

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vs.

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MICHAEL MARTEL, Warden,
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Respondent.
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No. C 09-3994 JW (PR)
ORDER DIRECTING PETITIONER TO
FILE TRAVERSE; DENYING
REQUEST FOR DISCOVERY;
DENYING REQUEST FOR
EVIDENTIARY HEARING
Doc. ## 31, 33, 34 & 35

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On October 7, 2011, the Court granted Petitioner’s request for an extension of

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time to file a traverse, giving Petitioner until November 21, 2011 to do so.

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Doc. #32. To date, Petitioner has not filed a traverse. He has, however, filed

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various documents with the Court. See Doc. ## 31, 33, 34 & 35. Two of the filed

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documents are “objections” to “Respondent’s Omission of Crucial Lodging of

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Exhibits” and essentially amount to a request for discovery. See Doc. ## 33 & 35.

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One document is a copy of a letter Petitioner sent to the Alameda County District

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Attorney requesting verification of certain details regarding Petitioner’s plea offer.

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Doc. #34. Another document, liberally construed, is a request for an evidentiary

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hearing. See Doc. #31. None of these documents amount to a traverse to

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Respondent’s answer, which was filed on September 14, 2011. See Doc. #29.
In the interest of providing Petitioner clarity and direction and preventing this
action from further stalling, the Court now orders as follows:
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Petitioner is hereby directed to file a traverse by no later than

December 30, 2011.
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Petitioner’s requests for discovery (Doc. ## 33 & 35) are DENIED for

Nelson, 394 U.S. 286, 299 (1969) (good cause for discovery under Rule 6(a) of the

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Federal Rules Governing Section 2254 Cases is shown “‘where specific allegations

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before the court show reason to believe that the petitioner may, if the facts are fully

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For the Northern District of California

lack of good cause. See Bracy v. Gramley, 520 U.S. 899, 908-09, quoting Harris v.

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United States District Court

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developed, be able to demonstrate that he is . . . entitled to relief . . .’”); Pham v.

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Terhune, 400 F.3d 740, 743 (9th Cir. 2005).

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3.

Petitioner’s request for an evidentiary hearing (Doc. #31) also is

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DENIED without prejudice as premature. Under the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”), codified under 28 U.S.C. § 2254, express

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limitations are imposed on the power of a federal court to grant an evidentiary

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hearing. Under AEDPA, a district court may not hold an evidentiary hearing on a

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claim for which the petitioner failed to develop a factual basis in state court unless

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the petitioner shows that: (1) the claim relies either on (a) a new rule of

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constitutional law that the Supreme Court has made retroactive to cases on collateral

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review, or (b) a factual predicate that could not have been previously discovered

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through the exercise of due diligence; and (2) the facts underlying the claim would

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be sufficient to establish by clear and convincing evidence that but for constitutional

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error, no reasonable fact finder would have found the applicant guilty of the

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underlying offense. 28 U.S.C. § 2254(e)(2).

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Even if a prisoner is able to clear the hurdle posed by § 2254(e)(2), “the fact
that a hearing would be permitted does not mean that it is required.” Downs v.
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Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). Rather, the district court retains

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discretion whether to hold an evidentiary hearing or to expand the record with

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discovery and documentary evidence. Williams v. Woodford, 384 F.3d 567, 590

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(9th Cir. 2004). This permissible intermediate step may avoid the necessity of an

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expensive and time consuming hearing in every habeas corpus case. Id. at 590-91.

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Here, as a threshold matter, Petitioner has not alleged why he is entitled to an

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evidentiary hearing under § 2254(e)(2). He does not assert that his claim relies on a

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new rule of constitutional law that the Supreme Court has made retroactive to cases

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on collateral review, nor does he allege that the factual predicate of his claim could
not have been previously discovered through the exercise of due diligence.

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For the Northern District of California

United States District Court

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Petitioner is advised that the Court will order an evidentiary hearing on its own

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motion if, upon consideration of the merits of Petitioner’s claims, one is required.

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IT IS SO ORDERED.

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DATED: December 8, 2011
JAMES WARE
United States District Chief Judge

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G:\PRO-SE\JW-SF\HC-09\Bluitt-09-3994-directing P to file traverse.wpd

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