The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
In February of this year, the court set deadlines for motions for discovery and for an evidentiary hearing. (Dkt. No. 172.) In April, the Supreme Court issued Cullen v. Pinholster, 131 S. Ct. 1388 (2011). Simply put, the Court in Pinholster restricted the federal courts' review under 28 U.S.C. § 2254(d)(1) to the record that was before the state court. On April 15, the court ordered the parties to brief the impact of Pinholster on the procedures for factual development of petitioner's claims. (Dkt. No. 173.) They have done so. (Dkt. Nos. 178, 179, 180.) For the reasons set out below, the undersigned finds the interests of judicial efficiency are best served by requiring petitioner to submit points and authorities addressing the section 2254(d) standards along with any motion for discovery.
In July 2005, petitioner filed a mixed petition in this court. (Dkt. No. 47.) These proceedings were stayed to permit petitioner to raise his unexhausted claims in state court. (Dkt. Nos. 73, 84.) After the California Supreme Court denied the exhaustion petition, petitioner filed an amended petition here in May 2007. (Dkt. No. 93.) Respondent filed an answer in September 2007 that alleged, among other things, a number of procedural bars. The court ordered briefing on the procedural bar issues. Those issues, and petitioner's motion to strike portions of the answer for inadequately pleading non-retroactivity under Teague v. Lane, 489 U.S. 288 (1989), were heard in January 2009. In 2010, the court held that no claims are procedurally barred and struck a number of respondent's assertions of Teague. (Dkt. Nos. 151, 164.)
Under the court's existing procedures, the next phase of this case would permit petitioner to seek factual development of his claims through discovery, further investigations, expansion of the record, and/or an evidentiary hearing. (Dkt. No. 90.) To that end, on February 7, 2011, the court set deadlines for filing motions for discovery and for an evidentiary hearing. (Dkt. No. 172.) Shortly after Pinholster issued, however, the court ordered the parties to file briefs "on the impact of [Pinholster] on these proceedings and, in particular, on the discovery and motion for an evidentiary hearing contemplated in the court's February 7, 2011 order." (Dkt. No. 173.)
On April 4, 2011, the Supreme Court issued Cullen v. Pinholster, 131 S. Ct. 1388 (2011). The Supreme Court examined the lower courts' grant of habeas relief which was based in part on evidence presented at an evidentiary hearing in the federal district court. The Court held that when a state court decides a habeas claim on the merits, the federal court's inquiry under 28 U.S.C. §2254(d)(1) is limited to the record before the state court. 131 S. Ct. at 1398. When the evidence obtained at the federal evidentiary hearing was excluded from consideration, the Court held the state court's decision was not an unreasonable application of federal law and reversed the grant of habeas relief. Id. at 1401-02. The Court's holding did not directly apply to review under section 2254(d)(2), which permits a federal court to grant habeas relief where the state's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." However, the Court's decision references the fact that the language of subsection (d)(2) specifically limits review to the state court record.*fn1
The Supreme Court explained that an evidentiary hearing may still be appropriate where the state court did not adjudicate the claim on the merits. 131 S. Ct. at 1400-01. It further noted: "we need not decide whether §2254(e)(2) prohibited the District Court from holding the evidentiary hearing or whether a district court may ever choose to hold an evidentiary hearing before it determines that §2254(d) has been satisfied." Id. at 1411 n. 20. In his concurring opinion, Justice Breyer added that an evidentiary hearing would be appropriate after it has been determined that the state court decision was unreasonable, to allow petitioner to prove his claims. Id. at 1412-13. The Court did not discuss how its holding would affect other factfinding procedures used in habeas corpus cases, such as investigations, discovery, or motions to expand the record.
In his briefs, petitioner makes a series of arguments. He starts by asserting that Pinholster has no impact on the good cause requirement for discovery or the statutory standards for determining when an evidentiary hearing is appropriate. (Dkt. No. 178 at 2-8.) He points out that the Supreme Court explicitly decided not to decide "whether a district court may ever choose to hold an evidentiary hearing before it determines that § 2254(d) has been satisfied." (Dkt. No. 180 at 5.) Petitioner concedes, however, that he "may not use any facts he develops in federal court to 'overcome the limitation of §2254(d)(1).'" (Id. at 9.) He further states that the federal court's inquiry under section 2254(d)(2) is similarly limited to the state court record. (Id. at 10.)
Petitioner argues discovery would be appropriate to develop facts that may render a claim unexhausted. (Dkt. No. 180 at 6.) Petitioner cites Conway v. Houk, No. 2:07-cv-947, 2011 WL 2119373 (S.D. Ohio May 26, 2011) as support. Conway provides only limited support. The magistrate judge in Conway permitted the petitioner to file a motion for discovery because "Pinholster did not, strictly speaking, alter or even speak to the standards governing discovery set forth in Rule 6." 2011 WL 2119373, at *3. The judge went on, Were the Court to permit discovery only after it appears that Pinholster would not bar consideration of new evidence, the Court would be adding months of delay to the proceedings, a result that could be avoided by simply permitting discovery that otherwise appears to be warranted under Rule 6. The Court recognizes the downside of its position-namely the possibility that time and money will be expended in the discovery of evidence that this Court might never consider. That is a risk the Court is willing to take. In a death penalty habeas corpus case, the Court prefers to err on the side of gathering too much information rather than too little.
Id. at *4. The judge pointed out that discovered information will not necessarily be presented to or considered by the court. Id. at *3. However, the judge noted that some courts have indicated that should the petitioner satisfy section 2254(d), "a federal court may consider additional evidence to determine whether habeas corpus relief should issue." Id. (citations omitted).
The judge in Conway addressed the petitioner's representation that "'[w]hen all of the factual development is completed, Petitioner intends to ask the Court to hold these proceedings in abeyance while he returns to state court to exhaust all of the new facts that he identified during the litigation in this court.'" Id. at *3. The judge did not, however, approve that procedure. The judge simply stated: "Without expressing an opinion on the propriety of such a procedure, the Court notes that, should Petitioner exhaust additional claims based on new facts in the state courts, then Pinholster would not preclude this Court's consideration of those facts." Id. The judge further warned the parties:
[N]othing in this order should be construed as suggesting that Petitioner's discovery requests will be granted, that Petitioner will be entitled to a stay and abeyance under Rhines v. Weber, or that Pinholster will not preclude expansion of the record or an evidentiary hearing ...