Opinion
Civil Action No. 03-cv-01761-EWN-BNB.
October 6, 2006
ORDER
This matter is before me on the petitioner's Request for Evidentiary Hearing on Respondents' Defense of Harmless Error [Doc. #73, filed 9/26/06] (the "Motion"). The Motion is DENIED.
The petitioner filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the "Application") on September 11, 2003. He now requests an evidentiary hearing on the Application. On March 22, 2005, and on September 11, 2006, I advised the petitioner that an evidentiary hearing is necessary only under the following circumstances:
This case is on remand from the Tenth Circuit Court of Appeals with directions to reexamine the petitioner's Confrontation Clause and Due Process Clause claims after review of the petitioner's state trial transcript.
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 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).
The petitioner has not demonstrated the existence of any of the requisites for an evidentiary hearing. Accordingly, the petitioner's request for an evidentiary hearing is DENIED.
IT IS ORDERED that the Motion is DENIED.