IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 21, 2011
JEFFREY PRICE, PETITIONER,
MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.
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.