Opinion
ED CV 20-00827-DSF(AS)
06-17-2021
DEMETRIUS TERRELL FREEMAN, Petitioner, v. FELIPE MARTINEZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DALE S. FISCHER, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Petition, the relevant records and the attached Final Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Final Report and Recommendation to which objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge in the Report and Recommendation. However, the Court addresses certain arguments raised in the objections below.
The Court construes Petitioner's Motion for Evidentiary Hearing and Judicial Notice (Docket No. 38) as objections to the Final Report and Recommendation.
Petitioner seeks an evidentiary hearing to review grand jury materials that he believes will show he did not have an unobstructed procedural shot at raising the claim alleged in Ground Two of the First Amended Petition. (Docket No. 38 at 1, 4-5). However, the Magistrate Judge recommended that Ground Two be dismissed without prejudice based on Petitioner's failure to make a claim of actual innocence and did not address whether Petitioner lacked an unobstructed procedural shot to pursue Ground Two. Therefore, an evidentiary hearing to review grand jury materials is not warranted and would not be helpful.
Petitioner also seeks an evidentiary hearing to challenge the statements made by Yolanda Sanchez regarding Petitioner's failure to exhaust administrative remedies with respect to Ground 5 of the First Amended Petition. (Docket No. 38 at 1, 2-3). However, Petitioner has failed to cite to any competent evidence that contradicts, refutes, or puts at issue the statements made by Yolanda Sanchez concerning Petitioner's failure to exhaust administrative remedies or the documents relied on in making such statements. Accordingly, Petitioner has failed to establish that an evidentiary hearing is necessary. See Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016) (“Where documentary evidence provides a sufficient basis to decide a petition, the Court is within its discretion to deny a full hearing.”); see also Howell v. Liddell, 2021 WL 392774, at *7 (E.D. Cal. Feb. 4, 2021) (evidentiary hearing is warranted when there is a material factual dispute concerning exhaustion of administrative remedies).
IT IS ORDERED that Judgment be entered denying the Petition without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Final Report and Recommendation and the Judgment on counsel for Petitioner and counsel for Respondent.