Opinion
2:20-cv-00939 TLN GGH
08-23-2021
JACINTO JOSE VALDOVINO, Petitioner, v. MATTHEW ATCHELY, Respondent.
ORDER
GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE JUDGE.
On September 30, 2021 at 10:00 a.m., the undersigned shall hold a hearing on the merits of the habeas petition. No. later than September 2, 2021, the parties shall inform the court whether they desire an in-person hearing or a hearing via Zoom.
While the parties are welcome to discuss at hearing any matter which they think significant, the undersigned is especially interested in the following:
1. When an evidentiary hearing is ordered in state court, may the judge in the evidentiary hearing be a percipient witness as well, like here, on the issue of petitioner's credibility derived from a prior jury trial in which the judge was not the trier of fact? See generally In re Murchison, 349 U.S. 133 (1955). Further, did the fact finding of process require recusal of the trial judge when “[e]ven worse, she found facts based on her untested memory of the events, putting material issues of fact in dispute.” Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014). But see Withrow v. Larkin, 421 U.S. 36, 53-54 (1975); Rothwell v. Hubbard, 77 Fed.Appx. 394 (9th Cir. 2003) (cited for illustrative purposes only).
2. Absent the introduction of new and significant facts introduced for the first time in federal habeas, e.g., actual innocence, is the court precluded from judging the trier of fact's factual findings, i.e., sufficiency of the factual findings, given in a state court evidentiary hearing, when that sufficiency is based upon credibility of the witnesses at an evidentiary hearing. See Schlup v. Delo, 513 U.S. 298, 330 (1995)(“[T]he assessment of the credibility of the evidence is generally beyond the scope of review.”); see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). That is, why would a trier of fact's credibility findings be nearly unassailable after trial, but not if made at evidentiary hearing?
IT IS SO ORDERED.