Carr v. McDowell

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL DAVID CARR, Case No. 21-cv-0900-MMA (MMP)

12 Petitioner, ORDER DENYING MOTION 13 v. FOR EVIDENTIARY HEARING

14 NEIL McDOWELL, Warden, et al., [Doc. No. 60] 15 Respondents. 16 17 Petitioner Paul David Carr filed a federal habeas corpus Petition in this Court on 18 May 10, 2021. Doc. No. 1. A Motion for Stay was granted on August 8, 2022, Doc. No. 19 24, and he filed his Amended Petition on March 16, 2023. Doc. No. 30. On March 4, 20 2024, the Court denied Carr’s Amended Petition and denied a Certificate of 21 Appealability. Doc. No. 55. On March 8, 2024, Carr filed a Motion for Evidentiary 22 Hearing. Doc. No. 60. 23 Evidentiary hearings in § 2254 cases are governed by AEDPA, which 24 “substantially restricts the district court’s discretion to grant an evidentiary 25 hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999); Clark v. Chappell, 26 / / / 27 / / / 28 / / / 1 936 F.3d 944, 967–68 (9th Cir. 2019). The provisions of 28 U.S.C. § 2254(e)(2) control 2 this decision. The standard for granting such a request is clear: 3 To determine whether a petitioner is entitled to an evidentiary hearing under 28 U.S.C. § 2254(e)(2), a court must first determine whether a factual 4 basis exists in the record to support the petitioner’s claim. Insyxiengmay v. 5 Morgan, 403 F.3d 657, 669–70 (9th Cir. 2005) (quoting Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999)). If the record contains a sufficient 6 factual basis that “refutes the applicant’s factual allegations or otherwise 7 precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Landrigan, 550 U.S. at 474, 127 S.Ct. 1933; see Pinholster, 563 8 U.S. at 171, 131 U.S. 1388 (“[A] federal habeas court is ‘not required to 9 hold an evidentiary hearing’ when the state-court record ‘precludes habeas relief’ under 2254(d)’s limitations.”) (citation omitted). If the factual basis 10 for the claim is undeveloped or absent, the next inquiry is whether petitioner 11 “failed to dev§elop” these facts in state court proceedings. Insyxiengmay, 403 F.3d at 669–70. Only when a petitioner demonstrates that he did not fail to 12 develop the factual basis for his claim in state court may a federal court 13 proceed to consider whether a hearing is appropriate or required under the framework set forth in Townsend v. Sain, id. 14

15 Cook v. Kernan, 948 F.3d 952, 970–71 (9th Cir. 2020). 16 Carr continues to insist that the 911 tapes and transcripts presented to the jury do 17 not reflect the actual times the calls were made and that an evidentiary hearing is 18 necessary. Doc. No. 60 at 3–8. As the Court noted in its March 4, 2024 Order denying 19 Carr’s Petition, the timing of the 911 calls was established at trial by the sworn testimony 20 of Detective Bloch, who testified that both Maria’s and Carr’s 911 calls were first routed 21 to the California Highway Patrol (“CHP”) and then transferred to the San Diego Sheriff’s 22 Department, and that she obtained the calls to both the CHP and the Sheriff. Doc. No. 23 35-9 at 22–24. Bloch was able to determine the time the CHP picked up both Carr’s and 24 Maria’s calls but not when they were transferred to the Sheriff’s Department. Id. at 25. 25 Maria’s call came into the CHP at 7:19 pm and 45 seconds, and Carr’s call came into the 26 CHP at 7:22 pm and 45 seconds. Id. at 25. There is no evidence in the record to support 27 a conclusion that Bloch’s testimony was inaccurate, nor has Carr provided any. 28 1 This Court has already determined that a sufficient factual basis existed in the 2 ||record to refute Carr’s habeas corpus claims, and thus an evidentiary hearing is both 3 unnecessary and precluded. See Doc. No. 55; Cullen v. Pinholster, 563 U.S. 170, 181 4 || (2011) (a federal court’s review is limited to the state court record). Carr simply re- 5 || argues the claims he made in his habeas corpus petition in his Motion for an Evidentiary 6 ||Hearing. See Doc. No. 60. See Doc. No. 55. Accordingly, the Court DENIES his 7 || Motion for an Evidentiary hearing. See Cook, 948 F.3d at 970-71. 8 IT IS SO ORDERED. 9 || Dated: March 14, 2024 0 LMackuh le (lilt HON. MICHAEL M. ELLO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28