The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING WITHOUT PREJUDICE [Document No. 13]
On August 13, 2010, Petitioner filed a Motion for Evidentiary Hearing. (Doc. 13.) Petitioner requests a hearing to question witnesses in two separate cases for which he was charged with sexual abuse: (1) the Thurman case; and (2) the Eyler case. As relates to both cases, Petitioner contends he has not failed to develop the factual basis of his claims because he has made reasonable attempts to obtain witness affidavits and other evidence to support his ineffective assistance of counsel claim. (Id. at 3.) As relates to the Thurman case, Petitioner contends he alleges facts which, if proven, will entitle him to habeas relief. (Id. at 4.) Specifically, Petitioner alleges facts that (1) demonstrate he is innocent of the crime charged in Count 7,*fn1 and (2) that his trial counsel failed to conduct a meaningful investigation into the allegations set forth in Count 7. As relates to the Eyler case, Petitioner contends newly presented evidence demonstrates he is innocent of the charge of sexual abuse against Alyssa R. (Id. at 7-8.) Further, Petitioner contends an evidentiary hearing will reveal trial counsel was ineffective because his "decision to withhold operative facts was based on a whim rather than on a deliberate and conscientious investigation." (Id. at 9.)
On October 8, 2010, Respondent filed an Opposition. (Doc. 17.) At the outset, Respondent contends consideration of an evidentiary hearing is premature because Petitioner's Petition is mixed, in that Ground 9 is unexhausted. (Doc. 17 at 2.) Second, Respondent contends the state courts reasonably and properly rejected Petitioner's arguments based upon the state-court record and the lack of evidentiary support for Petitioner's contentions.*fn2 (Id. at 6.) Third, Respondent contends Petitioner failed to provide the necessary evidence in state court that could have resulted in a state-court hearing, thereby precluding a federal hearing. (Id. at 17.)
On October 27, 2010, Petitioner filed a Reply. (Doc. 19.) First, contrary to Respondent's contention, Petitioner asserts Ground 9 of his Petition is exhausted. (Doc. 19 at 2.) Second, Petitioner contends an evidentiary hearing is necessary because his claim "challenges the credibility of the complaining witnesses' testimony based on evidence the jury never heard as a direct result of trial counsel's failure to adequately investigate the facts of this case." (Id. at 3.) Third, Petitioner contends that without an evidentiary hearing, the state court record is "too incomplete to permit a reasonable evaluation of the petition's factual allegations." (Id. at 4.)
On March 25, 2010, Petitioner filed his Petition for Writ of Habeas Corpus. (Doc. 1) On May 27, 2010, Respondent filed a response to the Petition. (Doc. 8.) On August 4, 2010, Petitioner filed a Traverse. (Doc. 12.) The Court is currently reviewing the merits of the Petition. Once the merits of the Petition are fully addressed, a determination will be made whether an evidentiary hearing is necessary. Based thereon, the Court hereby DENIES Petitioner's Motion for an Evidentiary Hearing without prejudice as premature.