§ 31.9 Factual Development

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 31.9 FACTUAL DEVELOPMENT

§ 31.9-1 Evidentiary Hearings

As amended by the AEDPA, 28 USC § 2254(e)(2) substantially restricts the district court's discretion to grant an evidentiary hearing. West v. Ryan, 608 F3d 477, 484 (9th Cir 2010), cert den, 562 US 1224 (2011). That section provides that if a habeas petitioner "failed to develop the factual basis of a claim in State court proceedings, the [federal] court shall not hold an evidentiary hearing on the claim" unless the petitioner shows that

(1) the claim relies on (a) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable"; or (b) "a factual predicate that could not have been previously discovered through the exercise of due diligence"; and

(2) "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 USC § 2254(e)(2).

Thus, a petitioner must meet the due-diligence requirements of 28 USC § 2254(e)(2) before the petitioner can rely on new evidence to support the merits of the claims. See Baja v. Ducharme, 187 F3d 1075, 1078-79 (9th Cir 1999), cert den, 528 US 1079 (2000) (the AEDPA's amendments "impose an express limitation on the power of a federal court to grant an evidentiary hearing, and have reduced considerably the degree of the district court's discretion"; thus, a petitioner must explain why the evidence needed to support his claim "could not have been developed during the course of the state proceedings") (internal quotation marks and citation omitted)).

In Williams v. Taylor, 529 US 420, 432, 120 S Ct 1479, 146 L Ed 2d 435 (2000), the United States Supreme Court stated that "a failure to develop the factual basis of a claim" in state court occurs if it is caused by a "lack of diligence, or some greater fault, attributable to the [petitioner] or the [petitioner's] counsel." The Supreme Court also stated that whether a petitioner is diligent in developing the petitioner's claim "depends upon whether the [petitioner] made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams, 529 US at 435. Thus, a petitioner who is "at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing" on the merits of the petitioner's claims on federal habeas review. Williams, 529 US at 433...