United States District Court, S.D. California
ORDER: (1) DENYING WITHOUT PREJUDICE MOTION FOR EVIDENTIARY HEARING; [ECF No. 26] 2) DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL; AND [ECF No. 32] (3) DENYING WITHOUT PREJUDICE MOTION FOR DISCOVERY [ECF No. 32]
JILL L. BURKHARDT, Magistrate Judge.
Presently before the Court is Petitioner's: (1) motion for an evidentiary hearing (ECF No. 26); (2) motion to appoint counsel (ECF No. 32); and (3) motion for discovery (ECF No. 32). No oppositions were filed. For the reasons set forth below, Petitioner's motion for an evidentiary hearing, motion to appoint counsel, and motion for discovery are DENIED without prejudice.
I. MOTION FOR EVIDENTIARY HEARING
On July 2, 2104, Petitioner filed a motion for evidentiary hearing. (ECF No. 26.) Petitioner seeks an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2)(B), claiming that the "State Court having the clear and convincing evidence, never held an evidentiary hearing." (ECF No. 26 at 1.) Petitioner argues that a "State habeas petitioner is entitled to an evidentiary hearing on the claim(s) if he did not receive a full and fair evidentiary hearing in State Court, and if he alleges facts that, if proven would entitle him to relief.'" ( Id. citing Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir. 1999).)
In order to determine whether to grant an evidentiary hearing, the court must first "determine whether a factual basis exists in the record to support the petitioner's claim." Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005). If not, and an evidentiary hearing would otherwise be appropriate, the court must "ascertain whether the petitioner has failed to develop the factual basis of the claim in State court." Id. at 669-70. A failure to develop the factual basis of a claim in state court implies some "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." See Williams v. Taylor, 529 U.S. 420, 432 (2000). The Supreme Court has said that "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437. "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state court proceedings." Id.
A federal court's discretion to hold an evidentiary hearing is further limited by 28 U.S.C. § 2254(e)(2), 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 made 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.
Petitioner's request for an evidentiary hearing is premature given the current briefing schedule. (ECF No. 31.) Petitioner filed his First Amended Petition for Writ of Habeas Corpus on March 19, 2014. (ECF No. 13.) Respondent has until October 8, 2014, to file an Answer to the Petition. (ECF No. 31.) Petitioner has until November 10, 2014, to file his Traverse. ( Id. ) Once the merits of the Petition have been fully addressed, a determination will be made as to whether an evidentiary hearing is ...