Opinion
Civil Action File No. 7:02-CV-107 (HL).
September 6, 2005
ORDER
The petitioner filed this § 2254 action challenging his 1998 Lowndes County conviction for voluntary manslaughter arising from a September 1998 jury trial for which petitioner received a twenty year sentence to serve. Petitioner's convictions and sentences were affirmed on direct appeal on March 24, 1999.Mayberry v. State, 237 Ga. App. 226 (1999).
Petitioner filed a petition for writ of habeas corpus in Tattnall County. An evidentiary hearing was held, during which petitioner's former attorney testified, and the state court denied habeas relief on September 25, 2001. The Supreme Court of Georgia denied petitioner's application for certificate of probable cause to appeal on September 18, 2002. The instant petition was filed on September 26, 2002.
Petitioner requests an evidentiary hearing, claiming that the facts necessary to determine the issues were not fully developed at petitioner's state trial and the state habeas hearings.
Petitioner is only entitled to hearing if he can show a need for a hearing pursuant to 28 U.S.C. § 2254 (e)(2). Petitioner must show that there was a failure to develop material facts in the state courts, and that the failure was not due to his own lack of due diligence. Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479 (2000). Petitioner has not met this burden, in that he was on notice of all the issues relevant to his appeal and subsequent state habeas petition. Petitioner's motion for an evidentiary hearing is accordingly DENIED.
SO ORDERED.