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Milton Otis Lewis v. Robert Ayers

June 7, 2011

MILTON OTIS LEWIS, PETITIONER,
v.
ROBERT AYERS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction and Summary

Perhaps no other law has generated more interpretive fits and starts than AEDPA,*fn1 and perhaps, no capital case has thereby undergone more fits and starts than this case. The issue here, the holding of an evidentiary hearing and 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 merely an idiosyncratic, wholesale affirmation of the Townsend formula for development of facts in federal habeas.

With some reluctance because of having undergone the lengthy proceedings which led to this court's order regarding an evidentiary hearing, the court cancels the hearing, and will ask for supplemental briefs on the merits for the issues which were heretofore part of the scheduled hearing

Procedural Posture

Presently pending is the evidentiary hearing set to be conducted on September 26, 2011. Respondent has summarized the status of the issues which were to be heard, and the undersigned adopts that summary absent any included argument.

This Court has ordered an evidentiary hearing [Dkt. 160] on claims 10, 11, 12, 13, 14, 15(b), 16(a), 16(c), 16(g), 16(i), 27(a), 27(b), 27(c), 27(d), 27(e), 27(f), 27(g), 27(h), 27(i), 27(j), and 27(k) of Petitioner's First Amended Petition [Dkt. 44.] The record shows that each of these claims was denied on the merits by the California Supreme Court: Claim 10 ("Law Enforcement Wilfully Violated Petitioner's Right Against Self-Incrimination by Knowingly Interrogating Him While He was Undergoing Withdrawal From Alcohol and Methamphetamine and Unable to Knowingly, Intelligently and Voluntarily Waive His Right to Remain Silent"): Presented to California Supreme Court on November 3, 1998, in1 SHC, his petition to that Court in case S074511, at page 21 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 11 ("Petitioner's Confession Was Involuntary"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 23 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD.

Claim 12 ("Ineffective Assistance of Counsel for Failure to Move to Suppress Petitioner's Unlawful Confession"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 18 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 13 ("Petitioner was Incompetent to Waive Rights, Assist Counsel, and Stand Trial"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 24 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD.

Claim 14 ("Petitioner Lacked the Requisite Mental State for Felony-Murder or the Alleged Special Circumstances"): Presented to California Supreme Court on November 3, 1998, in1 SHC, his petition to that Court in case S0745 11, at page 32 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 15(b) ("Ineffective Assistance of Counsel re Failure to Adequately Investigate the Facts of the Case Prior to Trial and Failure to File Any Motions"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 40 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD.

Claim 16(a) ("Ineffective Assistance of Counsel re Failure to Investigate Petitioner's Mental State at the Time of the Charged Crime, His Arrest, His Confession and During his Subsequent Incarceration"): Presented to California Supreme Court on November 3, 1998, in1 SHC, his petition to that Court in case S074511, at page 43 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 16(c) ("Ineffective Assistance of Counsel re Failure to Investigate and Present Meritorious Guilt Phase Defenses Re Petitioner's Mental Condition at the Time of the Offense"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 46 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD.

Claim 16(g) ("Ineffective Assistance of Counsel re Failure to Investigate and Present Evidence of Petitioner's Incompetence to Stand Trial"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 53 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD. Claim 16(i) ("Ineffective Assistance of Counsel re Failure to Investigate and Present Evidence of Accomplice Liability, Consult Experts, Conduct Voir Dire, Attack Forensic Evidence, Present Incompetency Evidence, and Object to Inadmissible and Inaccurate Testimony"): Presented to California Supreme Court on November 3, 1998, in 1 SHC, his petition to that Court in case S074511, at page 58 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 27(a) ("Ineffective Assistance of Counsel re Guilt Phase Incapacity and Penalty Phase Mitigation Evidence"): Presented to California Supreme Court on November 3, 1998, in 1 SHC, his petition to that Courtincase S074511, at page 84 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1 SHC.ORD.

Claim 27(b) ("Ineffective Assistance of Counsel re Failure to Investigate, Mitigate, or Challenge the Evidence Used in Aggravation Against Petitioner"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that Court in case S074511, at page 96 et seq. Denied by that Court "on the merits for failure to state a prima facie case for relief" on October 24, 2001, in 1SHC.ORD. Claim 27(c) ("Ineffective Assistance of Counsel in Failing to Conduct Any Investigation of Mitigating Circumstances and to Present Any Evidence at the Penalty Phase"): Presented to California Supreme Court on November 3, 1998, in 1SHC, his petition to that ...


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