ORDER [Re: Motion at Docket No. 60] and MEMORANDUM DECISION
JAMES K. SINGLETON, Jr., Senior District Judge.
Kevin S. Voage, a California state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Voage is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the Richard J. Donovan Correctional Facility. Respondent has answered, and Voage has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On April 18, 2011, Voage was charged with receiving stolen property in an information that further alleged six enhancements due to Voage's prior felonies and prison terms. Prior to trial, Voage moved in limine to exclude reference to his 10 prior convictions in the event he chose to testify. The trial court granted Voage's motion in part, ruling that, if Voage chose to testify, the prosecution could impeach him with 6 prior felony convictions involving moral turpitude: 1) February 1, 2006, conviction for criminal threats; 2) February 1, 2006, conviction for sexual battery; 3) May 8, 2000, conviction for using a minor in the sale of marijuana; 4) December 1994 conviction for nonviolent escape from jail; 5) November 15, 1993, conviction for automobile theft; and 6) November 15, 1993, conviction for evading a police officer. On direct appeal of his conviction, the California Court of Appeal recounted the following facts underlying the case against Voage and the evidence presented at trial:
At the conclusion of trial, the jury convicted Voage of receiving stolen property. In a bifurcated proceeding, the trial court found true the allegations that Voage had been convicted of 2 or more serious and/or violent felonies and had served 5 prior prison terms. The court denied Voage's motion to dismiss the prior strike allegations and sentenced Voage to 25 years to life imprisonment under California's Three Strikes law,
Through counsel, Voage appealed his conviction, arguing that: 1) the prosecution should not have been allowed to impeach him with 6 prior felony convictions; 2) the trial court abused its discretion in denying Voage's motion for mistrial based on the prosecution's failure to disclose new evidence; 3) the prosecutor committed misconduct during closing argument; 4) the trial court abused its discretion in refusing to dismiss the prior strike allegations; and 5) the life sentence for receiving stolen property constitutes cruel and unusual punishment. On November 27, 2012, the Court of Appeal issued a reasoned, unpublished opinion unanimously affirming the judgment against Voage. Voage petitioned for review in the California Supreme Court, which was summarily denied on February 13, 2013.
Voage then filed in the state courts a number of pro se habeas petitions that do not appear in the record before this Court. However, Respondent "admits that Petitioner has exhausted the claims presented in the amended petition for habeas corpus [(Docket No. 34 ("Petition"))]." Docket No. 47 ("Opposition") at 14. Briefing is now complete, and the case has been reassigned to the undersigned judge for adjudication. Voage has also moved for an evidentiary hearing in this Court. Docket No. 60.
In his pro se Petition before this Court, Voage argues that: 1) the trial court committed misconduct by relying on inaccurate records during Voage's bifurcated trial on prior convictions and prison terms; 2) appellate counsel was ineffective for failing to raise the trial court's misconduct on direct appeal; 3) the trial court erred by imposing compensatory victim restitution in excess of the amounts due; 4) the prosecution should not have been allowed to impeach him with 6 prior felony convictions; 5) the trial court erred in denying his motion for a mistrial based on the prosecution's failure to timely disclose impeachment evidence; 6) the prosecutor committed misconduct during closing argument by misstating facts; 7) the trial court abused its discretion by refusing to dismiss pursuant to California state law his prior serious or violent convictions; and 8) his life sentence for receiving stolen property is cruel and unusual punishment.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000 ).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id.at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Respondent urges the Court to dismiss Grounds 1 and 2 as not properly before the Court and procedurally defaulted, and Grounds 4 as procedurally defaulted. As previously noted, the record before this Court does not contain the majority of habeas petitions that Voage filed in the state courts. Accordingly, the Court is without ability to meaningful review those petitions and assess the procedural grounds upon which the state courts' decisions were made. Moreover, as discussed below, the allegedly-barred claims may be more easily resolved on the merits. Accordingly, the Court declines to decide those claims on procedural grounds and will address the merits of all Voage's claims, as discussed below. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (in the interest of judicial economy, the court may address a petition's merits without reaching procedural issues); Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (declining "to reach the complex questions lurking in the time bar of the AEDPA" where the district court "decided the case on the merits, and on the merits it was right as a matter of law").
1. Defective sentencing proceedings/ineffective assistance of appellate counsel (Grounds 1, 2); sentencing errors/cruel and unusual punishment (Grounds 3, 7, 8)
Voage first raises a number of claims related to his sentencing. The constitutional guarantee of due process is fully applicable at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). However, state law sentencing errors are not cognizable on federal habeas review. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989). Moreover, as the Ninth Circuit has explained, a petitioner's contention that a state trial court improperly exercised its discretion under state sentencing law generally does not allege any cognizable claim for federal habeas relief. See Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 538 U.S. 901 (2003), remanded to 66 F. App'x 136 (9th Cir. 2003). Nevertheless, a federal court may vacate a state sentence imposed in violation of due process, for example, if a state trial judge enhanced a sentence based on materially false or unreliable information or based on a conviction infected by constitutional error. See Townsend v. Burke, 334 U.S. 736, 741 (1948); United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995); Walker v. Endell, 850 F.2d 470, 477 (9th Cir. 1987).
i. Defective sentencing proceedings/ineffective assistance of appellate counsel
Voage argues that the trial court committed misconduct during his bifurcated trial on prior convictions and prior prison terms by relying on inaccurate records and that appellate counsel was ineffective for failing to raise the issue on appeal. According to Voage, the trial court altered evidence brought at his trial on the prior convictions, and the prosecution's burden of proof was thereby lowered in violation of due process rights.
The record indicates that Voage was originally charged with 3 prior serious or violent felony convictions within the meaning of California's Three Strikes law. The initial information listed the convictions as: terrorist threats (February 1, 2006); attempted murder (April 2, 1982); and robbery (April 2, 1982). At the trial on his prior convictions, the prosecution offered as an exhibit a certified criminal history report. The prosecutor noted that the documentation showed that the actual conviction date for the terrorist threats conviction was January 4, 2006. Similarly, the prosecutor observed that the actual conviction date for the attempted murder and robbery convictions was March 5, 1982. Without objection from defense counsel, the prosecutor asked the court to amend the charging document to conform to the proof presented.
To establish a due process violation based on false information, however, the false information must be "material." Jones v. United States, 783 F.2d 1477, 1480 (9th Cir. 1986) (emphasis in original) (quoting Townsend, 334 U.S. at 741). The record here shows that the information inaccurately listed the dates of conviction, which were off by about a month, and that Voage did not otherwise contest the veracity of the convictions. The discrepancy was therefore not material, and Voage cannot establish that the prior conviction information was materially false. Cf. United States v. King, 127 F.3d 483, 189 (holding that district court should have allowed the government to amend its original information to list correct date of defendant's prior conviction in Virginia state court under 21 U.S.C. § 851's clerical mistake provision). And because the discrepancy was not material, Voage does not allege facts that would establish a violation of the Sixth Amendment right to be clearly informed of the nature and cause of the charges against him. See Calderon v. Prunty, 59 F.3d 1005, 1009 (9th Cir. 1995) (reversing grant of habeas relief where petitioner where information was written with "sufficient clarity to apprise a defendant of what to defend against"); see also U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation. . . .").
Moreover, it is well-settled California law that a trial court does not abuse its discretion by permitting amendment of an information to correct minor errors such as typographical errors, where the amendment does not change the nature of the charges. People v. McQuiston, 70 Cal.Rptr. 531, 536 (Cal. Ct. App. 1968); see also CAL. PENAL CODE § 1009. Because Voage would not have prevailed on any challenge to the amendment of the information or to the trial court's reliance on it, counsel cannot be deemed ineffective for failing to raise the issue on direct appeal. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) ("Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless." (internal citation omitted)); Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 1989) (appellate counsel's failure to raise a weak issue does not constitute ineffective counsel). Accordingly, Voage is not entitled to relief on either of these grounds.
ii. Improper restitution
Voage also argues that "[t]o impose compensatory victim restitution in excess of amounts due, is abuse of discretion" in violation of the Constitution. However, a petition for a writ of habeas corpus can be entertained only on the ground that the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Ninth Circuit has held that "§ 2254(a) does not confer jurisdiction over a habeas corpus petition raising an in-custody challenge to a restitution order." Bailey v. Hill, 599 F.3d 976, 984 (9th Cir. 2010) (footnote omitted). "[T]he remedy that [Petitioner] seeks, the elimination or alteration of a money judgment, does not directly impact—and is not directed at the source of the restraint on—his liberty." Id. at 981. A federal court, then, lacks jurisdiction to hear claims that challenge the money portion of a state judgment, such as a restitution order, which does not affect the duration of custody. Id.
Moreover, Voage's claim that the restitution order was unauthorized by California law is a state-law claim which is beyond the purview of this Court in a federal habeas proceeding. Swarthout, 131 S. Ct. at 863; see also Bell v. Cone, 543 U.S. 447, 455 (2005). Further, the state court's rejection of his claim is an interpretation of state law that is binding on this court in consideration of the habeas petition. Estelle, 502 U.S. at 67-68. Because it has been determined that the restitution amounts were allowed under state law, there was no order in excess of that allowed by state law and no federal due process violation. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir.1987). Voage's challenge to the restitution order therefore must fail.
iii. Failure to dismiss a prior conviction
Voage additionally contends that the trial court abused its discretion in refusing to dismiss three of his prior strike convictions at sentencing. Under California Penal Law § 1385, a California court may dismiss a defendant's "strike" conviction for purposes of sentencing under the state's Three Strikes law;
The thrust of this claim is that the trial court erroneously failed to exercise its discretion to strike one of his prior serious felony convictions when imposing his sentence. Such claim, however, presents only a state law sentencing error that is not cognizable on federal habeas review. See Souch v. Schiavo, 289 F.3d 616 (9th Cir.2002) (claim challenging state court's discretionary decision concerning application of state sentencing law presented only state law issues and thus was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254); see also Swarthout, 131 S. Ct. at 863; Estelle, 502 U.S. at 67-68. Although the Ninth Circuit has suggested that an abuse of discretion may also amount to a constitutional violation, see Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc), the Supreme Court has never held that abuse of discretion is an appropriate basis for granting federal habeas relief.
Even assuming that Voage is correct that the trial court misapplied California law when denying his motion, absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing law does not warrant habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); see also Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989) (declining to examine state court's determination that habeas petitioner's prior conviction was for a "serious felony" under state sentencing regime). Federal courts are "bound by a state court's construction of its own penal statutes," Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1993), and this Court therefore must defer to the California courts' application of the state's three strikes law unless that interpretation is "untenable or amounts to a subterfuge to avoid federal habeas review of a constitutional violation." Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). Voage does not allege that the state court's application of the Three Strikes law was either untenable or done to avoid federal review of his sentence. Nor has he shown that the trial court's Romero decision was arbitrary, capricious, or fundamentally unfair in violation of federal due process. See Christian, 41 F.3d at 469. As the Court of Appeal explained:
Voage, 2012 WL 5914032, at *10.
The Court of Appeal's determination was both reasonable and fully supported by the record. Voage is not entitled to relief on this claim.
iv. Cruel and unusual punishment
Voage further asserts that his sentence is cruel and unusual. The Eighth Amendment, applicable to the States through the Fourteenth Amendment, proscribes the infliction of "cruel and unusual punishments." U.S. CONST. amend. VIII; Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). The Supreme Court has held that "the only relevant clearly established law amenable to the `contrary to' or `unreasonable application of' framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (citation omitted). In determining whether to infer gross disproportionality, a federal court should examine whether a petitioner's sentence is justified by the gravity of his triggering offense and his criminal history, a process similar to the three-pronged approach employed by California state courts. See Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004).
Here, the California Supreme Court upheld Voage's sentence of 25 years to life imprisonment where he was convicted of receiving stolen property and was also a repeat offender. Voage cannot demonstrate that his is one of the exceedingly rare cases in which the sentence imposed raises an inference of gross disproportionality when compared to the crime committed. See, e.g., Ewing v. California, 538 U.S. 11, 29-30 (2003) (sentence of 25 years to life for grand theft of $1,200 of golf clubs was not cruel and unusual); Lockyer, 538 U.S. at 77 (two consecutive sentences of 25 years to life for petty theft was not cruel and unusual). The California Supreme Court's affirmance of Voage's sentence was therefore not "contrary to, or . . . an unreasonable application of," the gross disproportionality principle, the contours of which are unclear. Lockyer, 538 U.S. at 72-73.
Although Voage's sentence is admittedly harsh, California's decision to subject him to an enhanced sentence as a recidivist under its Three Strikes Law "reflect[ed] a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." Ewing, 538 U.S. at 30. As the Court of Appeal noted, "[V]oage's current felony conviction follows a long history of criminal conduct dating back to when he was 20 years old. The record does not show that [his] criminal activity was abating with age." Voage, 2012 WL 5914032, at *11. Consequently, "[Voage's] sentence of 25 years to life in prison is not unconstitutionally cruel and unusual given his current felony conviction, his three prior strikes, and his 29-year history of criminal conduct." Id. at *15. Voage is not entitled to relief on this claim.
2. Evidentiary error-impeachment on prior convictions (Ground 4)
Voage next argues that the trial court erred in its preliminary ruling permitting him to be impeached with four prior felony convictions. On direct appeal, the Court of Appeal considered and rejected that claim as follows:
Voage, 2012 WL 5914032, at *3-6 (citations omitted).
Voage fares no better on federal habeas review.
Moreover, Voage cannot show that the trial court's ruling violated his constitutional rights. "`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.
Similarly, to the extent Voage argues that the prior convictions inflamed the jury by suggesting Voage's propensity to commit the present crime, the United States Supreme Court has never held clearly that the introduction of propensity evidence violates due process. See Estelle, 502 U.S. at 75 n. 5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime"); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (rejecting habeas petitioner's challenge to propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution).
In the absence of clearly established Supreme Court law on this issue, AEDPA relief is foreclosed. See Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) ("it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted). Because the Court of Appeal's rejection of this claim was not contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court, Voage's challenge to the admission of his prior convictions must fail.
3. Denial of mistrial motion (Ground 5)
Voage next asserts that the trial court erred by denying his motion for a mistrial based on the prosecution's failure to timely disclose new evidence. The Court of Appeal laid out the following facts underlying this claim:
Voage, 2012 WL 5914032, at *6-7.
Brady v. Maryland, 373 U.S. 83 (1962), and its progeny require the prosecution to disclose material information that is "favorable to the accused, either because it is exculpatory, or because it is impeaching." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A Brady violation occurs only where there is a "reasonable probability" that a different verdict would have resulted from disclosure of the information that the defendant claims was suppressed. Id. at 281. That is, "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985).
Here, Voage fails to demonstrate materiality, i.e., that there is a reasonable probability that, had Stuart's new statements been disclosed to the defense earlier in the proceedings, the overall result would have been different. As the Court of Appeal explained:
Voage, 2012 WL 5914032, at *8 (citations omitted).
Voage's assertions of materiality and prejudice are based upon speculation as to how his defense would have been impacted if Stuart's statements had been disclosed earlier. But this Court "cannot consider conjecture" about what evidence "might have shown" in deciding a Brady claim. See Crawford v. Head, 311 F.3d 1288, 1329 (11th Cir. 2002); see also Cooper v. Brown, 510 F.3d 870, 925 (9th Cir. 2007) ("The mere possibility that undisclosed information might have helped the defense, or might have affected the outcome of the trial, is insufficient to establish materiality in the constitutional sense."). Further, this is not a case where the challenged evidence was never disclosed to the defense; although delayed, the disclosure occurred in adequate time for the defense to use the evidence at trial, particularly given the court's instructions. See United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir.1985) (holding a delayed disclosure does not violate due process under Brady if the nature of the violation is disclosed at a time when it would still be of value to the accused). As the Court of Appeal noted:
Voage, 2012 WL 5914032, at *8.
This conclusion is both reasonable and fully supported by the record. Consequently, Voage is not entitled to relief on this ground.
4. Prosecutorial misconduct (Ground 6)
Finally, Voage argues that the prosecutor committed misconduct by misstating facts during closing argument. The Court of Appeal described the background of this claim as follows:
Voage, 2012 WL 5914032, at *9.
A prosecutor may not misstate the evidence or refer to facts not in evidence. Darden, 477 U.S. at 181-82; Berger v. United States, 295 U.S. 78, 84-85 (1935) (holding that prosecutor "overstepped the bounds of . . . propriety and fairness" by "misstating the facts in his cross-examination of witnesses; . . . putting into the mouths of such witnesses things which they had not said; . . . suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; . . . [and] assuming prejudicial facts not in evidence"). But again, a habeas petition alleging prosecutorial misconduct will be granted only when the misconduct did "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
Voage fails to demonstrate fundamental unfairness here. As the Court of Appeal reasonably concluded when rejecting this argument on direct appeal, "here the prosecutor's argument was a fair comment on the evidence. Contrary to [Voage's] contention, the record supports an inference that [Voage] had an opportunity to tell police officers his version of events." Voage, 2012 WL 5914032, at *9. The appellate court explained:
The appellate court's analysis is fully supported by the record.
Request for Evidentiary Hearing
Voage further requests an evidentiary hearing on all of his claims (Docket No. 60). A district court may not hold an evidentiary hearing on a claim for which a petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
Where the failure to develop the factual basis for the claim in the state court proceedings is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293 (1963). Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the Supreme Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on his factual allegations if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 670 (quoting Townsend, 372 U.S. at 313), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
As discussed above, Voage has failed to assert a colorable claim for relief. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (holding an evidentiary hearing is not required on issues which can be resolved on the basis of the state court record). Because he does not cite to new laws or underlying facts that were not developed on the record before the state courts with respect to this claim, he has also failed to satisfy his burden of proof under 28 U.S.C. § 2254(e)(2). Voage's request for an evidentiary hearing at Docket No. 60 must therefore also be denied.
V. CONCLUSION AND ORDER
Voage is not entitled to relief on any ground raised in his Petition and is not entitled to an evidentiary hearing.
The Clerk of the Court is to enter judgment accordingly.