Opinion
No. 02-CV-72296-DT
January 15, 2003
OPINION AND ORDER DENYING EVIDENTIARY HEARING
Charles William Smith, ("petitioner"), currently incarcerated at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on charges of larceny from a building, receiving and concealing stolen property, and being a sixth felony offender. Petitioner was sentenced as an habitual offender to five to twenty years and five to fifteen years for these crimes.
Petitioner has also filed a motion for an evidentiary hearing to inquire into whether ineffective assistance of trial and appellate counsel provides legal cause for his state procedural defaults and whether he can show prejudice therefrom. For the reasons stated below, the motion for an evidentiary hearing is denied.
I. DISCUSSION
A federal court must grant an evidentiary hearing to a habeas corpus applicant if:
(1) the merits of factual dispute were not resolved in state hearing;
(2) the state factual determination is not fairly supported by record as a whole;
(3) the fact finding procedure in state court was not adequate to afford full and fair hearing;
(4) there is a substantial allegation of newly discovered evidence;
(5) material facts were not adequately developed at a state court hearing; or
(6) for any reason it appears that state trier of fact did not afford applicant a full and fair fact hearing.Townsend v. Sain, 372 U.S. 293, 313 (1963); 28 U.S.C.A. § 2243.
Because petitioner filed his application for writ of habeas corpus after the effective date of the Antiterrrorism and Effective Death Penalty Act (AEDPA), the provisions of that act would apply to his case. Lindh v. Murphy, 521 U.S. 320, 336 (1997). One of the provisions of that act states that if an applicant for a writ of habeas corpus 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 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.28 U.S.C. § 2254(e)(2).
Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim by a habeas petitioner is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or prisoner's counsel. Williams v. Taylor, 120 S.Ct. 1479, 1488 (2000). Diligence for purposes of the opening clause of this subsection of the AEDPA depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend upon whether those efforts would have been successful. Id. at 1490. diligence will require that the petitioner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. Id.
Federal-state comity is not served by stating that a prisoner has "failed to develop the factual basis of a claim" where he was unable to develop his or her claim in state court despite diligent efforts to do so. In that circumstance, an evidentiary hearing is not barred by U.S.C. § 2254(e)(2). Williams v. Taylor, 120 S.Ct. at 1491. If there is no lack of diligence at the relevant stages in the state proceedings, a petitioner has not failed to develop the facts under the opening clause of the AEDPA governing whether a federal habeas petitioner may obtain an evidentiary hearing on a claim for which a petitioner has failed to develop a factual basis in state court proceedings, and petitioner will be excused from showing compliance with the balance of the subsection's requirements. Id.
In the present case, petitioner contends that ineffective assistance of counsel is cause for his procedural defaults and that he was prejudiced thereby. However, pending before this Court is respondent's motion to dismiss the petition as barred by the habeas corpus statute of limitations. Petitioner has sought and been granted an extension of time to respond to the motion to dismiss.
If respondent's motion to dismiss the petition as barred by the statute of limitations is granted, it will not be necessary for the Court to reach the question of procedural default. Further, the Court is not persuaded that an evidentiary hearing will be needed if it is necessary to address the procedural default question. Therefore, the Court shall deny petitioner's motion for an evidentiary hearing without prejudice. The Court shall reconsider the motion if it appears that proper adjudication of the petition may require holding an evidentiary hearing. Accordingly, petitioner's motion for an evidentiary hearing shall be denied without prejudice.
II. ORDER
IT IS HEREBY ORDERED that petitioner's Motion for an Evidentiary Hearing to be conducted on the matter of whether ineffective assistance of counsel provides cause for his procedural defaults and whether he was prejudiced thereby is DENIED WITHOUT PREJUDICE.