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STORY v. KINDT

February 7, 1997

STANTON T. STORY, Petitioner
v.
WARDEN TOM KINDT, Respondent and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Additional Respondent.



The opinion of the court was delivered by: SENSENICH

Re: Doc. # 50

 On March 12, 1996, Petitioner Stanton Story filed a motion for an evidentiary hearing, which was denied by order dated June 17, 1996 (Doc. # 46). On June 27, 1996, Petitioner filed a Motion to Reconsider Petitioner's Request for an Evidentiary Hearing on the Merits of His Petition (Doc. # 50). For the following reasons, this motion is denied.

 This case is here on remand from the Court of Appeals for the Third Circuit, Story v. Kindt, 26 F.3d 402 (3d Cir. 1994), cert. denied, 513 U.S. 1024, 115 S. Ct. 593, 130 L. Ed. 2d 506 (1995). The court determined that exhaustion of state remedies should be excused in this case because of extensive delay on the part of the Commonwealth. While the case was pending before the Court of Appeals, a hearing was held on Petitioner's PCHA petition in the Court of Common Pleas of Allegheny County and on March 16, 1994, Judge George Ross denied the petition. The Court of Appeals remanded the case for a determination of the merits of the petition. By a report and recommendation filed today, it is being recommended that Petitioner's petition for writ of habeas corpus be denied.

 Standards for Holding Evidentiary Hearings

 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (the AEDPA), which revises many of the procedures for habeas corpus proceedings. Section 104(4) of the AEDPA amends the section on factual presumptions, redesignated § 2254(e), to read that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1). Furthermore:

 
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
 
(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) (as amended Apr. 24, 1996).

 The Commonwealth's Second Supplemental Answer to Petition for Writ of Habeas Corpus and Request for Evidentiary Hearing argues that new section 2254(e)(2) would prohibit the Court from holding an evidentiary hearing, although this case was filed prior to the date the amendments of the AEDPA were enacted, because Petitioner has failed to demonstrate that the claims raised are based on a new rule of constitutional law, that he raises a factual predicate that could not have been previously discovered through the exercise of due diligence, or that the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found him guilty of the underlying offense. (Doc. # 49, filed June 12, 1996, at 3.) However, as discussed in the report and recommendation, the issue of the retroactivity of the AEDPA is significant only if it would alter the result. See Berryman v. Morton, 100 F.3d 1089, 1102-04 (3d Cir. 1996); Meyers v. Gillis, 93 F.3d 1147, 1149 n.1 (3d Cir. 1996); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). The Court need not determine whether new section 2254(e)(2) applies, because under either standard, Petitioner's request for an evidentiary hearing should be denied.

 Under the law as it existed prior to the AEDPA amendments, to determine whether a habeas hearing is required, the court "must first determine whether [petitioner] has alleged facts that, if proved, would entitle him to relief." Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989) (citing Townsend v. Sain, 372 U.S. 293, 312, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir. 1989)). If so, the court "must then decide whether an evidentiary hearing is necessary to establish the truth of those allegations." Id. In the Smith case, Smith's factual allegations, taken in the light most favorable to him, if proved, would have established a violation of his constitutional rights in that his guilty plea was not knowing and voluntary because he was mentally incompetent at the time he entered it. Because the state factfinding procedure was not adequate to afford a full and fair hearing (Townsend factor 3) when trial counsel misrepresented the conclusions of a psychiatrist who had found Smith incompetent to stand trial, the district court was required to hold an evidentiary hearing on the issue. Id. at 339-40.

 Standard of Review

 Section 2254(d) (prior to the April 24, 1996 amendments) requires that a determination of a factual issue, after a hearing on the merits by a state court of competent jurisdiction in a proceeding to which the petitioner and an officer of the state were parties and which was evidenced by reliable and adequate written indicia, be presumed correct unless one of eight exceptions applies. However, mixed questions of law and fact and conclusions of law have to be reviewed by a federal court de novo. See Wright v. West, 505 U.S. 277, 305, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992) (O'Connor, J., concurring in the judgment). See, e.g., Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (state court findings of fact concerning counsel's performance subject to presumption of correctness, but ultimate conclusion that counsel was not ineffective requires independent review by federal court).

 If the four § 2254(d) prerequisites have been met, "written findings made by a state court on a factual issue are presumed to be correct unless [a petitioner] establishes, or it is otherwise shown, or the respondent admits, one or more of eight exceptions." Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991), cert. denied, 503 U.S. 988, 118 L. Ed. 2d 396, 112 S. Ct. 1679 (1992). "Moreover, the Supreme Court's standards under 28 U.S.C. § 2254(d) set forth that the burden rests on that party attempting to rebut the presumption of correctness, not the party assuming it." 946 F.2d at 255 (citing Sumner v. Mata, 449 U.S. 539, 550-51, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981)). The four factors are: (1) a hearing on the merits of a factual issue, (2) made by a state court of competent jurisdiction, (3) in a proceeding to which the petitioner and the state were parties and (4) the state court's resolution of the factual dispute is evidenced by a written finding, opinion or other reliable and adequate written indicia.

 The United States Supreme Court in Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 2d 318, 112 S. Ct. 1715 (1992), held that failure to raise issues in a state court proceeding prevents a habeas petitioner from raising them in federal court unless the "cause and prejudice/fundamental miscarriage of justice" exception is met. 504 U.S. at 11-12. The Court of Appeals for the Ninth Circuit had held that Tamayo-Reyes was entitled to an evidentiary hearing in federal court because his post-conviction counsel's negligent failure to develop the facts to support his claim that the trial interpreter had failed to translate the mens rea element of first degree manslaughter, thereby resulting in an uninformed nolo contendere plea, was not a "deliberate bypass" of state court procedure under Fay v. Noia, 372 U.S. 391, 438, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963). 504 U.S. at 4. However, the Supreme Court held that, in light of more recent case law in this area, the appropriate standard is as follows:

 
Respondent Tamayo-Reyes is entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure. We also adopt the narrow exception to the cause-and-prejudice requirement: A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can ...

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