The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
I. Introduction and Summary
Perhaps no other law has generated more interpretive fits and starts than AEDPA*fn1 .
The issue here, the extent of permissible discovery in a habeas corpus action, seemingly once settled, has been upset by the AEDPA ruling of Cullen v. Pinholster, __U.S.__, 131 S.Ct. 1388 (2011). Although Cullen specifically dealt with evidentiary hearings, its linkage to the discovery issue presented here is unquestionably present. And much as petitioner would like to read Cullen as having no real effect on a petitioner's right to an evidentiary hearing in federal habeas, or in turn, discovery for presentation of facts at evidentiary hearing, the case is remarkable for its restrictions on such. Cullen is not, as petitioner argues, merely an idiosyncratic, wholesale affirmation of the Townsend formula for development of facts in federal habeas.
For the reasons stated below, the court denies discovery at this time, and vacates its oral order at hearing previously permitting discovery on the "juror" issue. The undersigned will expeditiously proceed to the pending procedural default motion, and will issue a ruling on that so that an answer and traverse may be filed to appropriate claims.
Presently pending is petitioner's motion for discovery, part of which was filed under seal. Docs. 107, 110. Respondent timely filed an opposition and a hearing was held before the undersigned on March 24, 2011. Appearing for petitioner was Jennifer Mann and Bruce Cohen.*fn2 Appearing for respondent was Christina Simpson and Eric Christoffersen. After hearing, the undersigned asked for supplemental briefing due to the recently announced case of Cullen v. Pinholster, __U.S.__, 131 S.Ct. 1388 (2011). Further argument was held on May 18, 2011.
Cullen was decided on April 4, 2011. The majority holding on the propriety of evidentiary hearings, with five justices joining in the majority opinion, provided: "We now hold that review under § 2254(d)(1)*fn3 is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen at 1398. Further emphasis for the holding appears throughout the opinion: "[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review." See also: "[E]vidence later introduced in federal court is irrelevant to § 2254(d)(1) review." Id. There is no ambiguity in these holdings.*fn4
In the course of adjudicating the subsection (d)(1) issue, the Supreme
Court was unanimous in its discussion that § 2254(d)(2) (see footnote
1 above) was clear in limiting the evidence on review to that put
before the state courts. The dissent viewed the explicit reference to
the § 2254(d)(2) [review of state court decisions based on an
unreasonable factual determination] as a reason to distinguish its
explicit language limiting review to the state court record*fn5
to the situation presented by (d)(1) which did not contain
the explicit language. Cullen (dissent) at 1415-1416. In answering
this point, the majority agreed that the explicit language
(d)(2) made that section easy to interpret as precluding federally developed evidence, but held that the explicit language did not mean that (d)(1) was open to any and all federally developed evidence. Id. at 1400 (n.7) (emphasis added):
Pinholster and Justice SOTOMAYOR place great weight on the fact that § 2254(d)(2) includes the language "in light of the evidence presented in the State court proceeding," whereas § 2254(d)(1) does not. See post, at 1415 - 1416. The additional clarity of § 2254(d)(2) on this point, however, does not detract from our view that § 2254(d)(1) also is plainly limited to the state-court record.
The undersigned repeats for emphasis: "§ 2254(d)(1) also is limited to the state-court record." Clearly the word "also" means that both §§ 2254(d)(1) and 2254(d)(2) are limited to the state court record where the state court made an "adjudication on the merits," § 2254(d). There can be no other ...