(HC) Valdovino v. Atchely ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACINTO JOSE VALDOVINO, No. 2:20-cv-00939 TLN GGH 12 Petitioner, 13 v. ORDER 14 MATTHEW ATCHELY, 15 Respondent. 16 17 18 On September 30, 2021 at 10:00 a.m., the undersigned shall hold a hearing on the merits 19 of the habeas petition. No later than September 2, 2021, the parties shall inform the court whether 20 they desire an in-person hearing or a hearing via Zoom. 21 While the parties are welcome to discuss at hearing any matter which they think 22 significant, the undersigned is especially interested in the following: 23 1. When an evidentiary hearing is ordered in state court, may the judge in the evidentiary 24 hearing be a percipient witness as well, like here, on the issue of petitioner’s 25 credibility derived from a prior jury trial in which the judge was not the trier of fact? 26 See generally In re Murchison, 349 U.S. 133 (1955). Further, did the fact finding of 27 process require recusal of the trial judge when “[e]ven worse, she found facts based on 28 1 her untested memory of the events, putting material issues of fact in dispute.” Hurles 2 v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014). But see Withrow v. Larkin, 421 U.S. 36, 3 53-54 (1975); Rothwell v. Hubbard, 77 Fed. Appx. 394 (9th Cir. 2003) (cited for 4 illustrative purposes only). 5 2. Absent the introduction of new and significant facts introduced for the first time in 6 federal habeas, e.g., actual innocence, is the court precluded from judging the trier of 7 fact’s factual findings, i.e., sufficiency of the factual findings, given in a state court 8 evidentiary hearing, when that sufficiency is based upon credibility of the witnesses at 9 an evidentiary hearing. See Schlup v. Delo, 513 U.S. 298, 330 (1995)(“[T]he 10 assessment of the credibility of the evidence is generally beyond the scope of 11 review.”); see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). That is, why 12 would a trier of fact’s credibility findings be nearly unassailable after trial, but not if 13 made at evidentiary hearing? 14 IT IS SO ORDERED. 15 Dated: August 23, 2021 /s/ Gregory G. Hollows 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28