Gonzales v. Leotti

Filing 33

ORDER 32 Denying Request for Evidentiary Hearing. Signed by Judge Ronald M. Whyte on 2/3/14. (jgS, COURT STAFF) (Filed on 2/3/2014)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 ARTEMIO GONZALES, 11 Petitioner, 12 v. 13 GEORGE LEOTTI, Warden, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) No. C 11-3235 RMW (PR) ORDER DENYING REQUEST FOR EVIDENTIARY HEARING On June 27, 2011, petitioner, a state prisoner proceeding pro se, filed a writ of habeas 17 corpus challenging a criminal conviction and judgment pursuant to 28 U.S.C. § 2254. (Docket 18 No. 1.) Respondent filed an answer on January 4, 2013. (Docket No. 19.) The matter was 19 submitted to the court on February 4, 2013, when petitioner failed to file a traverse. Petitioner 20 has filed a letter requesting an evidentiary hearing. (Docket No. 32.) 21 An evidentiary hearing is held in federal habeas cases only under the most limited 22 circumstances. See Baja v. Ducharme, 187 F.3d 1075, 1077-79 (9th Cir. 1999). Here, there is 23 no indication that an evidentiary hearing is required under 28 U.S.C. § 2254(e). Petitioner’s 24 claims do not appear to rely upon extra-record evidence and a factual basis exists in the record to 25 determine the claims. Upon review of the merits of the petition, if the court determines that 26 further fact finding is required, the court will consider whether an evidentiary hearing is 27 necessary. Accordingly, petitioner’s motion for an evidentiary hearing is DENIED without 28 prejudice. Order Denying Request for Evidentiary Hearing G:\PRO-SE\RMW\HC.11\Gonzales235deny-evidhrg.wpd 1 2 3 IT IS SO ORDERED. DATED: _______________ RONALD M. WHYTE United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Request for Evidentiary Hearing G:\PRO-SE\RMW\HC.11\Gonzales235deny-evidhrg.wpd2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GONZALES et al, Case Number: CV11-03235 RMW Plaintiff, CERTIFICATE OF SERVICE v. LEOTTI et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 3, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Artemio Gonzales F37380 Department of Corrections and Rehabilitation Q3-310 PO Box 2000 1600 California Drive Vacaville, CA 95696 Dated: February 3, 2014 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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