ORDER DENYING, WITHOUT PREJUDICE, MOTION FOR EVIDENTIARY HEARING

(ECF NO. 24)

ORDER DENYING MOTION FOR LEAVE TO FILE LATE OPPOSITION

(ECF NO. 28)

MICHAEL J. SENG, District Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent Raythel Fisher, Warden of Valley State Prison, is represented by Fon Chen of the California Attorney General's Office. All parties have consented to Magistrate Judge jurisdiction for all purposes. (ECF Nos. 8, 26.)

Before the Court is Petitioner's motion for an evidentiary hearing. (ECF No. 24.) It is unclear what evidence Petitioner intends to present at such a hearing. In any event, this Court, in reviewing Petitioner's claims and determining if the state court decision was reasonable, may only rely upon the record before the state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."). As such, in the initial review of Petitioner's claims, this Court may not examine evidence that was not presented to the state court. If, upon substantive review of the petition, the Court determines that discovery is necessary, it will provide Petitioner the opportunity to obtain the discovery, including possibly holding an evidentiary hearing.

Accordingly, Petitioner's motion requesting an evidentiary hearing is HEREBY DENIED without prejudice. As such, Respondent's motion for leave to file a late opposition to the motion for evidentiary hearing is HEREBY DENIED as moot.

IT IS SO ORDERED.