Opinion
No. CV F 045-0513 REC WMW HC, [Doc. 4], [Doc. 5].
February 16, 2006
ORDER DENYING MOTION FOR NEW TRIAL ORDER DENYING MOTION FOR EVIDENTIARY HEARING
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 19, 2005, Petitioner filed a motion for a new trial. There is no procedure for the filing of such a motion within a petition for writ of habeas corpus and such a separate request is unnecessary. Accordingly, Petitioner's motion for a new trial is HEREBY DENIED as duplicative of her petition for writ of habeas corpus.
Also on April 19, 2005, Petitioner filed a motion for an evidentiary hearing. Rule 8(a) provides that where a petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and transcripts and record of the state court proceedings are filed, shall, upon review of those proceedings, determine whether an evidentiary hearing is required. The purpose of an evidentiary hearing is to resolve the merits of a factual dispute. An evidentiary hearing on a claim is required where it is clear from the petition that: (1) the allegations, if established, would entitle the petitioner to relief; and (2) the state court trier of fact has not reliably found the relevant facts. See, Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). As the function of an evidentiary hearing is to try issues of fact, Townsend v. Swain 372 U.S. 293, 309 (1963) ( overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715 (1993)), such a hearing is unnecessary when only issues of law are raised. Id.
As the court has yet to review the merits of Petitioner's claim, it is unable to determine whether there is a disputed issue of fact that requires an evidentiary hearing. Following a thorough review of the petition's merits, the court will sua sponte issue an order for an evidentiary hearing should it find one necessary.
Accordingly, the request for an evidentiary hearing is DENIED.
IT IS SO ORDERED.