UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 19, 2011
DAVID EARL WILLIAMS, PETITIONER,
JEANNE WOODFORD, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge Sitting by designation
While Cullen v. Pinholster, 131 S. Ct. 1388 (2011), bars a federal district court from holding an evidentiary hearing in ruling on habeas petitions filed under 28 U.S.C. § 2254(d)(1), see Pinholster, 131 S. Ct. at 1398, Williams makes his challenge under section 2254(d)(2), see Supp. Brief of Nov. 28, 2011, at 12--15. Pinholster thus does not bar him from expanding the record.
In ruling on the merits of Williams's petition, the court is prepared to rely on the declarations submitted with his motion for expansion of the record. See Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). Written declarations do not, of course, permit cross-examination, and there may be further evidence that the parties may wish to present. Williams has stated that, if Respondent doesn't dispute the facts contained in the declarations Williams has presented, he plans to present no live testimony. See Motion for Expansion of Nov. 28, 2011, at 3--5. Unless either party, within 21 days of the filing of this order, requests an evidentiary hearing with live testimony, the court will proceed to rule on the merits of Williams's petition based on the facts already in the record and those presented in the declarations recently submitted.
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