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Jeffrey Price v. Matthew Cate


April 21, 2011


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


[Re: Motion at Docket No. 76]

At Docket No. 76 Petitioner, Jeffrey Price, a state prisoner appearing through counsel, filed a Motion to Alter or Amend Judgment.*fn1 In his motion, Price contends that this Court erred in ruling that the retroactive provision providing veto power by the Governor over parole decisions made by the Board of Parole Hearings violated the Ex post Facto Clause of the United States Constitution. Price contends that this Court should hold an evidentiary hearing arguing that, if allowed discovery and an evidentiary hearing to develop and litigate all the facts, he could show that the provision granting the Governor veto power over decisions of the Board,*fn2 enacted subsequent to Price's conviction, violated the Ex Post Facto Clause. This Court disagrees.

The Supreme Court recently made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn3 Although an evidentiary hearing in a federal habeas proceeding is not absolutely precluded under Pinholster, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn4 which provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Price's request in this case does not meet that standard.

Price's reliance on Thomas v. Yates*fn5 is misplaced. In Thomas the petitioner adequately developed a factual basis to raise a prima-facie ex post facto claim in the state court, but was precluded by the state court from developing further evidence in support of that claim.*fn6 As this Court noted in its Memorandum Decision, unlike Thomas, Price neither presented any factual basis for his ex post facto claim to the state courts, nor did he request an evidentiary hearing in the state courts.*fn7 Thus, it cannot be said on the record that the state courts precluded him from developing the factual basis for his claim.*fn8 Indeed, until he filed the motion at bar, Price did not even request an evidentiary hearing in this Court.


IT IS THEREFORE ORDERED THAT Motion to Alter or Amend Judgment at Docket No. 76 is DENIED.

IT IS FURTHER ORDERED THAT this Court declines to issue a Certificate of Appealability.*fn9 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn10

James K. Singleton, Jr.

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