United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER DENYING MOTION FOR
D. NOCE UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on petitioner's ex parte
motion for a hearing. (Doc. 29). The parties have consented
to the exercise of plenary authority by the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. §
Jeffrey Weinhaus, a Missouri state inmate, commenced this
action on July 10, 2017, seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Docs. 1, 25). He was
convicted in the Circuit Court of the Lafayette County of
possession of a controlled substance, first-degree assault on
a law enforcement officer, and armed criminal action. (Doc.
27). He received concurrent sentences of 2 years, 30 years,
and 30 years imprisonment, respectively. (Id.). For
the reasons discussed below, petitioner's motion for a
hearing is denied without prejudice, subject to
reconsideration upon further review of the case.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) permits evidentiary hearings on federal
habeas review, but with significant restrictions.
See 28 U.S.C. § 2254(e). Determinations of
factual issues made by a state court are presumed to be
correct. Id. If an applicant has failed to develop
the factual basis of a claim in state court proceedings, no
evidentiary hearing is permitted, unless the applicant shows
(A) the claim relies on (i) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) 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 U.S.C. 2254(e)(2).
this limitation only applies to prisoners who failed to
develop the factual basis of their claim in state court
proceedings, the first question is whether the relevant facts
were developed in state court, and, if not, whether it was
due to a failure of petitioner. Such a failure is established
by lack of diligence or some greater fault attributable to
petitioner or his counsel. If petitioner has diligently
pursued an issue in state court, he is not precluded from
seeking an evidentiary hearing. Townsend v. Sain,
372 U.S. 293 (1963) (overruled on other grounds by Keeney
v. Tamayo-Reyes, 504 U.S. 1 (1992)).
motion does not specify what would be presented at an
evidentiary hearing. In reviewing petitioner's six
grounds for habeas relief, only one alleges that a factual
basis at trial was undeveloped: in Ground 1, petitioner
claims that his attorney failed to offer evidence regarding
the placement of his pistol holster in the form of FBI agent
testimony and a still shot of a video shown to the jury.
Petitioner raised some of these claims on direct appeal and
others in post-conviction proceedings. (Doc. 25). The
post-conviction relief court entered judgment on his claims
without a hearing. (Id.).
record shows that petitioner made a reasonable attempt to
investigate and pursue this claim, precluding the application
of the § 2254(e)(2) hearing restriction. He sought to
introduce some of this evidence at trial and referenced this
evidence both at trial and in his post-conviction motion, and
any lack of diligence he attributes to his attorney in an
ineffective-assistance-of-counsel claim. (Doc. 27, Exs. 8,
this court now evaluates the propriety of a hearing under
Townsend v. Sain, 372 U.S. 293 (1963) (overruled on
other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992)). The burden is on the petitioner to allege sufficient
facts to support the grant of an evidentiary hearing. In
exercising discretion to hold an evidentiary hearing, this
court will focus on whether a new evidentiary hearing would
have the potential to advance the petitioner's claim.
That is, whether petitioner's allegations, if true, would
establish his right to relief. See Schriro v.
Landrigan, 550 U.S. 465, 474 (2007).
that petitioner seeks to present the evidence about his
pistol holster, the court is not persuaded that an
evidentiary hearing is necessary at this time. The video at
issue from which the screenshot would have been taken was
presented to the jury at trial, and any claims about the
screenshot and the FBI agent testimony can be determined as a
matter of law in addressing the question of whether
petitioner's trial counsel was effective. As the
remainder of petitioner's claims also involve questions
of law, not fact, an evidentiary hearing is not required,
because legal questions can be resolved by reference to the
state court record. See Schriro, 550 U.S. at 474.
the Supreme Court has limited the evidence available in
§ 2254(d)(1) claims to the state-court record, because
§ 2254(d)(1) review measures what a state court knew and
did against the Supreme Court's precedents at that time.
Cullen v. Pinholster, 563 U.S. 170, 181-83 (2011).
“It would be contrary to that purpose to allow a
petitioner to overcome an adverse state-court decision with
new evidence introduced in a federal habeas court and
reviewed by that court in the first instance effectively
de novo.” Id. at 182. Accordingly,