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Burton v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 20, 2010

ERIC WILTON BURTON, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge

ORDER DENYING MOTION FOR EVIDENTIARY HEARING [Document No. 183]

On August 6, 2010, Petitioner filed a Motion for an Evidentiary Hearing. (Doc. 183.) Petitioner contends he is entitled to an evidentiary hearing in light of newly discovered material exculpatory evidence, allegedly suppressed by the prosecution.

A state habeas petitioner is entitled to an evidentiary hearing on a claim (1) if he did not receive a full and fair evidentiary hearing in state court, (2) if he did not fail to develop facts in state court, and (3) if he alleges facts that, if proven, would entitle him to relief. Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999).

On February 9, 2010, Respondent filed a Motion to Dismiss the First Amended Petition. (Doc. 143.) On June 30, 2010, this Court filed a Report and Recommendation denying Respondent's Motion to Dismiss. (Doc. 168.)

In light of the pending Motion to Dismiss before District Judge Larry Burns, the Court hereby DENIES without prejudice Petitioner's request as premature. If the case proceeds after a Motion to Dismiss, the Court will consider and order an evidentiary hearing if necessary.

IT IS SO ORDERED.

20100820

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