(HC) Leavy v. Warden

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CARNELL A. LEAVY, Case No. 1:22-cv-00915-KES-HBK (HC) 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR EVIDENTIARY HEARING 13 v. WARDEN, (Doc. No. 20) 15 Respondent.

18 Before the court is Petitioner’s motion for an evidentiary hearing. (Doc. No. 20).

19 Petitioner, a state prisoner, has pending a pro se petition for writ of habeas corpus filed under 28 20 U.S.C. § 2254. (Doc. No. 1, “Petition”). Petitioner requests an evidentiary hearing because the Court in its September 19, 2024 Order granting Petitioner’s construed motion for review of the Petition to the limited extent that the Court would review this case as expeditiously as possible also noted that the Supreme Court has instructed federal courts to liberally construe the “inartful pleading[s]” of pro se litigants. (See Doc. No. 19 (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982)). Petitioner seeks to “resolve issues” with his “inartful filings” at an evidentiary hearing.

26 (See generally Doc. No. 20).

27 Evidentiary hearings are granted only under limited circumstances in habeas proceedings.

28 See 28 U.S.C. § 2254(e)(2)(A)(ii). “In deciding whether to grant an evidentiary hearing, a federal | court must consider whether such a hearing could enable an applicant to prove the petition's | factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. | Landrigan, 550 U.S. 465, 474 (2007). “It follows that if the record refutes the applicant's factual | allegations or otherwise precludes habeas relief, a district court is not required to hold an || evidentiary hearing.” Jd. Although Respondent has filed an answer, and Petitioner has filed a | traverse, the Court has not yet reviewed the pleadings. The Court will review the briefing and | make findings and recommendations in due course. If the Court determines that an evidentiary | hearing is warranted, it will schedule one at that time. See Rules Governing Section 2254 Cases, | R. 8a).

10 Accordingly, it is ORDERED: 11 Petitioner’s motion for an evidentiary hearing and for appointment of counsel (Doc. No. 12 20) is DENIED without prejudice.

Dated: _ January 21,2025 Wiha. □□ fares Zackte 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE