Opinion
NO. CIV.S-02-2240 LKK/GGH P.
March 5, 2007
ORDER
Petitioner has raised two issues in his habeas petition, aBatson violation and a jury misconduct issue. With regard to theBatson issue, the Findings and Recommendations applied the wrong standard of review by requiring that petitioner submit "clear and convincing evidence" to rebut the state court's factual findings.
As the Ninth Circuit clarified in Kesser v. Cambra, 465 F.3d 351, 358 n. 1 (9th Cir. 2006) (en banc), which was decided after the Findings and Recommendations were issued, the appropriate standard of review to apply to habeas petitions varies depending on whether there has been a federal evidentiary hearing. When there has been no such hearing, as is the case here, the standard of review is governed by 28 U.S.C. § 2254(d)(2). That section provides that relief may be granted where the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts." Thus, when a petitioner relies solely on the state court record, and presents no new evidence, § 2254(d)(2) provides the relevant standard of review.
In contrast, when challenges are based upon extrinsic evidence or evidence presented for the first time in federal court, a different standard of review, that is set forth in 28 U.S.C. § 2254(e)(1), applies. In these cases, the petitioner must produce "clear and convincing evidence" to rebut the presumption of correctness that attaches to the factual findings of the state court. See Kesser, 465 F.3d at 358 n. 1; Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004). Here, however, petitioner has not introduced new evidence, and the magistrate judge erred by applying § 2254(e)(1).
The matter is referred back to the magistrate judge for further findings consistent with this order.
IT IS SO ORDERED.