Ernest DeWayne Jones v. Robert K. Wong

Filing 113

RESPONSE filed by Petitioner Ernest DeWayne Jonesto Response (non-motion) 107 to Respondent's Opening Brief on Claim 27 (Attachments: # 1 Appendix Death Sentences in California, 1978-1997 (Revised))(Laurence, Michael)

1
2
3
4
5
6
7
8
9

Michael Laurence (Bar No. 121854)
Cliona Plunkett (Bar No. 256648)
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
Attorneys for Petitioner Ernest DeWayne Jones
UNITED STATES DISTRICT COURT

10
11
12
13

FOR THE CENTRAL DISTRICT OF CALIFORNIA
ERNEST DEWAYNE JONES,
Petitioner,

16
17

DEATH PENALTY CASE

V.

14
15

Case No. CV-09-2158-CJC

KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin,
Respondent.

18

RESPONSE TO RESPONDENT’S
OPENING BRIEF ON CLAIM 27
Date:
August 4, 2014
Time:
11:00 a.m.
Courtroom: 9B

19
20
21
22
23
24
25
26
27
28

Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

TABLE OF CONTENTS

2

Table of Authorities .................................................................................................. iii 

3

I. 

Introduction ....................................................................................................... 1 

4

II. 

5

The Exhaustion Doctrine Does Not Preclude this Court From
Granting Relief on Claim 27. ............................................................................ 3 

6

A.  Claim 27 is Exhausted in its Entirety. ........................................................ 4 

7

B.  The Portion of Claim 27 Regarding California’s Lack of an
Execution Protocol Must be Deemed Exhausted Because
California Does Not Provide A Viable Forum for Mr. Jones to
Present it. .................................................................................................... 6 

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

C.  California’s Dysfunctional Death Penalty System Exempts
Claim 27 From the Exhaustion Requirement. ............................................ 7 
III.  The Ripeness Doctrine Does Not Preclude the Granting Relief on
Claim 27. ......................................................................................................... 10 
IV.  The Limitations Contained in 28 U.S.C. § 2254(d) Do Not
Preclude the Granting Relief on Claim 27. ..................................................... 10 
A.  Mr. Jones is Entitled to De Novo Review Because the State
Court Did Not Adjudicate His Claim on the Merits. ................................ 13 
1.  The California Supreme Court never adjudicated Claim 27
as presented to this Court. ................................................................... 13 
2.  The California Supreme Court did not adjudicate the
appellate claim on the merits. .............................................................. 15 
B.  Mr. Jones Satisfies Section 2254(d) Because the State Court
Had Before It, But Ignored, the Facts Supporting His Claim,
and Because the State Court Based Its Ruling on Incorrect
Factual Assumptions. ................................................................................ 17 
C.  The State Court’s Holding That Mr. Jones Suffered No
Conceivable Prejudice is Contrary To Clearly Established
Federal Law. ............................................................................................. 20 

27
28
i
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

D.  Mr. Jones Satisfies Section 2254(d) Because the State Court
Standard is Contrary to Clearly Established Federal Law
Regarding the Penological Purposes of the Death Penalty. ..................... 22 

2
3
5

This Court’s Analysis of the Status of the Death Sentences
Imposed Between 1978 and 1997 Fully Supports Granting of
Relief on Claim 27. ......................................................................................... 24 

6

VI.  Conclusion ...................................................................................................... 25 

4

V. 

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

TABLE OF AUTHORITIES

2
3
4

Cases ............................................................................................. Page(s)
Ali v. Hickman, 571 F.3d 902 (9th Cir. 2009) ......................................................... 20

5

Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006) ....................................................... 11

6

Beam Distilling Co. v. Georgia, 510 U.S. 529 (1991)............................................. 16

7

Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987) ............................................. 9

8
9
10
11

Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990) ......................................................... 8
Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982
(1977) .................................................................................................................. 23

12

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) ............................................................................................................. 4

13

Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) ................. 13

14
15

Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 179 L. Ed. 2d 557
(2011) .................................................................................................................. 13

16

Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) ..................................................... 14

17
18
19
20
21
22
23
24
25
26
27
28

Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) ............................................................. 9
Duke Power Co. v. Carolina Envt’l Study Group, Inc., 438 U.S. 59, 98
S. Ct. 2620, 57 L. Ed. 2d 595 (1978) .................................................................. 10
Duncan v. Henry, 513 U.S. 364, 115 S. Ct. 887, 130 L. Ed. 2d 865
(1995) .................................................................................................................... 4
Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L.Ed.2d 783 (1982) .................... 6
Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982) .................................................................................................................. 23
Ford v. Wainwright, 477 U.S. 399, 105 S. Ct. 2595, 91 L. Ed. 2d 335
(1986) .................................................................................................................. 21
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 33 L. Ed. 2d 346
(1972) .................................................................................................................. 23
iii
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Gaitlin v. Madding, 189 F.3d 882 (9th Cir. 1999) ..................................................... 5

2

Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671, 95 L. Ed. 2d 119
(1987) .................................................................................................................... 4

3
4
5

Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 135 L. Ed. 2d 457
(1996) .................................................................................................................... 5

6

Green v. Thaler, 699 F.3d 404 (5th Cir. 2012) ........................................................ 14

7

Hall v. Florida, ___ U.S. ___, 134 S. Ct. 1986 (May 27, 2014) ............................. 21

8

Hamilton v. Calderon, 134 F.3d 938 (9th Cir. 1998) ................................................ 9

9
10
11

Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1991) ................................................... 8
Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770 (2011) ................................... 16

12

Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994) ................................................. 8

13

Lee v. Stickman, 357 F.3d 338 (3d Cir. 2004) ........................................................... 8

14

Lounsbury v. Thompson, 374 F.3d 785 (9th Cir. 2004)............................................. 5

15
16
17
18
19
20
21
22
23

Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981) ...................................................... 9
Matias v. Oshiro, 683 F.2d 318 (9th Cir. 1982) ........................................................ 6
Miller-El v. Cockrell, 537 U.S. 322 (2003) ............................................................. 20
O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d
1 (1999) ................................................................................................................. 4
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 118 S. Ct.
1665, 140 L. Ed. 2d 921 (1998) .......................................................................... 10
People v. Anderson, 25 Cal. 4th 543, 106 Cal. Rptr. 2d 575 (2001) ....................... 18

24

People v. Barnett, 17 Cal. 4th 1044, 74 Cal. Rptr. 2d 121 (1998) .......................... 16

25

People v. Carter, 36 Cal. 4th 1114, 32 Cal. Rptr. 3d 759 (2005) ............................ 16

26

People v. Coombs, 34 Cal. 4th 821 (1995) .............................................................. 19

27

People v. Doolin, 45 Cal. 4th 390, 87 Cal. Rptr. 3d 209 (2009) ............................. 18

28
iv
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

People v. Frye, 18 Cal. 4th 894, 77 Cal. Rptr. 2d 25 (1998) .............................18, 20

2

People v. Hill, 3 Cal. 4th 959, 13 Cal. Rptr. 2d 475 (1992) ..............................18, 20

3
4
5

People v. Jones, 29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003) .................2, 15, 20
People v. Ledesma, 39 Cal. 4th 641, 47 Cal. Rptr. 3d 326 (2006) .......................... 16

6

People v. Ochoa, 26 Cal. 4th 398, 110 Cal. Rptr. 2d 324 (2001) ......................18, 22

7

People v. Sanchez, 12 Cal. 4th 1, 47 Cal. Rptr. 2d 843 (1995) ............................... 17

8

People v. Szeto, 29 Cal. 3d 20, 171 Cal. Rptr. 652 (1981) ...................................... 17

9

Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001) .................................................. 6

10
11
12
13
14
15
16
17
18
19

Porter v. McCollum, 558 U.S. 30, 123 S. Ct. 2527, 156 L. Ed. 2d 471
(2009) .................................................................................................................. 19
Rompilla v. Beard, 545 U.S. 374, 25 S. Ct. 2456, 162 L. Ed. 2d 360
(2005) .................................................................................................................. 13
Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968) ......................................................................................................... 19
Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H. R. Rep.
439 (1989) ............................................................................................................. 1
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154 82 L. Ed. 2d 340
(1984) .................................................................................................................. 23

20

Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981)............................................................. 6

21

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ..................................................... 19

22
23

Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d
702 (1988) ........................................................................................................... 23

24

Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)........................ 23

25

Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598
(1986) ..............................................................................................................4, 14

26
27
28

Weems v. United States, 217 U.S. 349, 30 S. Ct. 433, 54 L. Ed. 793
(1910) .................................................................................................................. 23
v
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Winston v. Kelly, 592 F.3d 555-56 (4th Cir. 2010).................................................. 17

2

Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986) ................................................. 8

3
4
5
6

Statutes
28 U.S.C. § 2254(b) .........................................................................................3, 7, 15
28 U.S.C. § 2254(d) ......................................................................................... passim

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vi
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

I. INTRODUCTION

2

Pursuant to this Court’s June 11, 2014 Order, Mr. Jones submits this

3

response to respondent’s brief on Claim 27. Order Amending Briefing Schedule

4

and Setting Hearing on Claim 27, June 11, 2014, ECF No. 110. In its “Opening

5

Brief on Claim 27 that Lengthy Confinement of Petitioner Under Sentence of

6

Death Violates [the] Eighth Amendment,” respondent asserts that (1) Mr. Jones

7

failed to comply with the exhaustion doctrine; (2) a portion of the claim is not ripe

8

for review; and (3) relief is bared by 28 U.S.C. section 2254(d). Opening Brief on

9

Claim 27 that Lengthy Confinement of Petitioner Under Sentence of Death

10

Violates Eighth Amendment (Resp. Opening Br.) at 2-7, June 9, 2014, ECF No.

11

107. Respondent’s arguments, however, reflect a fundamental misunderstanding of

12

the nature of the claims presented in the state court and this Court, the California

13

Supreme Court’s limited resolution of the claim on direct appeal, and the effect of

14

respondent’s express waiver of the exhaustion requirement after Mr. Jones filed his

15

federal Petition for Writ of Habeas Corpus in 2010.

16

Mr. Jones presented a portion of Claim 27 to the state court on direct appeal.

17

Appellant’s Opening Br. at 229-43, Notice of Lodging, Apr. 6, 2010, ECF No. 29

18

(“NOL”) at B1; Appellant’s Reply Br. at 100, NOL at B3. Specifically, Mr. Jones

19

presented to the state court a “twofold” claim: “first, that delay in itself constitutes

20

cruel and unusual punishment; and second, that the actual carrying out of the

21

execution would serve no legitimate penological ends.” Appellant’s Opening Br. at

22

240-41. Mr. Jones supported his claim with citations to legal authorities noting

23

that the physical conditions and emotional and mental anguish that death row

24

inmates face while awaiting execution – described in the Appellant’s Opening

25

Brief as “death row phenomenon” – constitute cruel and unusual punishment.

26

Appellant’s Opening Br. at 229-43; see also Appellant’s Opening Br. at 237

27

(arguing that Mr. Jones’s ten-year appellate process and additional habeas corpus

28

proceedings exceed the “length of stay” considerations in Soering v. United
1
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Kingdom, App. No. 14038/88, 11 Eur. H. R. Rep. 439 (1989)).

2

The state court’s adjudication of the claim consisted of the following:

3

Defendant’s argument that “one under judgment of death suffers

4

cruel and unusual punishment by the inherent delays in resolving his

5

appeal is untenable. If the appeal results in reversal of the death

6

judgment, he has suffered no conceivable prejudice, while if the

7

judgment is affirmed, the delay has prolonged his life.”

8

People v. Jones, 29 Cal. 4th 1229, 1267, 131 Cal. Rptr. 2d 468 (2003) (citing and

9

quoting People v. Anderson, 25 Cal. 4th 543, 606, 106 Cal. Rptr. 2d 575 (2001)).

10

In the Petition for Writ of Habeas Corpus filed in this Court, Mr. Jones

11

significantly expanded on the legal and/or factual bases for Claim 27. Citing to

12

several constitutional provisions, Mr. Jones alleged entitlement to relief because (1)

13

California failed to provide “a constitutionally full, fair, and timely review of his

14

conviction and sentence”; (2) California’s excessive “delay in” the “final

15

resolution” of cases “far exceeds that of any other state with capital punishment”

16

and was not attributable to Mr. Jones’s actions; (3) the deplorable conditions at San

17

Quentin

18

dehumanizing”; (4) there are a significant number of deaths by suicide or other

19

causes at San Quentin compared to the few executions that have occurred; and (5)

20

several of the executions that have occurred have been botched. Petition for Writ

21

of Habeas Corpus By a Prisoner in State Custody (28 U.S.C. § 2254) (Petition),

22

Mar. 10, 2010, at 414-18, ECF No. 26. Mr. Jones also supplemented the appellate

23

claim with additional factual allegations his claims that: (1) the uncertainty of

24

execution inflicts unconstitutional “psychological suffering”; (2) execution after

25

such an excessive delay negates any legitimate purpose – including retribution and

26

deterrence – to be served by capital punishment; and (3) based on the forgoing,

27

executing Mr. Jones after the excessive delay (fifteen years since the death

28

judgment) that already has occurred and the “several more years likely” to pass and

are

“psychologically

torturous,

degrading;

brutalizing,

and

2
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

under the conditions at San Quentin “would involve the needless infliction of

2

avoidable mental anguish and psychological pain and suffering were it to occur.”

3

Petition at 414-18.

4

Mr. Jones presented the California Supreme Court with this enhanced claim

5

in the state petition filed contemporaneously with the federal petition, but Mr.

6

Jones withdrew that petition and the California Supreme Court did not review the

7

claim because respondent expressly waived the exhaustion defense as to all claims

8

in the federal petition. See Answer to Petition for Writ of Habeas Corpus, filed

9

April 6, 2010, at 2 n.3, ECF No. 28 (noting that “Respondent is not asserting that

10

any claims in the instant federal Petition are unexhausted”); Response to

11

Application to Defer Informal Briefing on Petition for Writ of Habeas Corpus, Mar.

12

25, 2010, In re Jones, California Supreme Court Case No. S180926 at 1,

13

Supplemental Notice of Lodging of Documents, filed May 13, 2010, ECF No. 42

14

at F8 (stating “respondent has examined the federal petition and has determined

15

that all claims therein appear to be exhausted....Respondent will therefore be filing

16

an answer to the federal petition and will not be asserting that any claims are

17

unexhausted.”); see also 28 U.S.C. § 2254(b)(3) (excusing exhaustion requirement

18

when “the State, through counsel, expressly waives the requirement”).

19

Thus, respondent’s exhaustion and section 2254(d) arguments must account

20

for the limited review that the state court conducted with respect to the claim raised

21

in Appellant’s Opening Brief and respondent’s decision to waive any exhaustion

22

objections to the claim pled in the Petition filed in this Court in 2010. Rejection of

23

respondent’s arguments is thus mandated.

24

II. THE EXHAUSTION DOCTRINE DOES NOT PRECLUDE

25

THIS COURT FROM GRANTING RELIEF ON CLAIM 27.

26

Respondent asserts that a portion of Mr. Jones’s Claim 27 – the portion

27

alleging an Eighth Amendment violation based on delay caused by the current lack

28

of an execution protocol in California – is unexhausted. Resp. Opening Brief at 2.
3
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Respondent is incorrect. This portion of Claim 27 is in fact exhausted because it is

2

sufficiently related and intertwined with the claim that was raised on appeal and the

3

claim to which respondent expressly waived any exhaustion objections. Even if

4

this Court finds otherwise, this portion of Claim 27 is properly before this Court

5

because: (1) it would be otherwise futile for Mr. Jones to return to the California

6

Supreme Court; and (2) the exhaustion requirement must be excused because the

7

circumstances of this case render the California corrective process ineffective to

8

protect Mr. Jones’s rights.

9

Federal habeas relief is generally available to state prisoners only after they

10

have exhausted their claims in state court. 28 U.S.C. § 2254(b); see also O’Sullivan

11

v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Vasquez v.

12

Hillery, 474 U.S. 254, 257, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (purpose of

13

exhaustion doctrine is “to afford the state courts a meaningful opportunity to

14

consider allegations of legal error without interference from the federal judiciary”).

15

The exhaustion doctrine, however, is a matter of federalism and comity, not of

16

jurisdiction. See, e.g., Granberry v. Greer, 481 U.S. 129, 134, 107 S. Ct. 1671, 95

17

L. Ed. 2d 119 (1987); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct.

18

2546, 115 L. Ed. 2d 640 (1991). A claim is exhausted for purposes of legal and

19

factual exhaustion if it has been “fairly present[ed]” to the state courts, so that the

20

state court has an “‘opportunity to pass upon and correct’ alleged violations” of

21

petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,

22

130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct.

23

509, 30 L. Ed. 2d 438 (1971)).

24

A.

Claim 27 is Exhausted in its Entirety.

25

Mr. Jones provided the state court the opportunity to “pass upon” his claim

26

that the uncertainly of whether he will be executed following an extraordinarily

27

lengthy delay in execution of his sentence renders his death sentence

28

unconstitutional. Appellant’s Opening Br. at 230 (quoting In re Medley, 134 U.S.
4
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

160, 172, 10 S. Ct. 384, 33 L. Ed. 835 (1890)); see also Petition at 417 (alleging

2

“psychological suffering” caused by uncertainty of execution and quoting In re

3

Medley); Petition at 418 (alleging “needless inflection of avoidable mental anguish

4

and psychological pain and suffering”). In the Amended Petition for Writ of

5

Habeas Corpus, Mr. Jones listed the lack of a valid lethal injection protocol as a

6

more specific reason why the unconscionable delay in the final resolution of his

7

case violates the Constitution. First Amended Petition for Writ of Habeas By A

8

Prisoner in State Custody (28 U.S.C. § 2254) (First Amended Petition) at 421-22,

9

Apr. 28, 2014, ECF No. 105. Nonetheless, the nature of the claim – that the

10

uncertainty of whether Mr. Jones will be executed after an extraordinarily lengthy

11

delay is unconstitutional – was unaffected by the amendment.

12

Thus, Mr. Jones’s argument that California’s lack of a valid execution

13

protocol further violates the Eighth Amendment is sufficiently related and

14

intertwined with the claim that was presented to the state court (and the claim to

15

which respondent waived exhaustion) to satisfy the exhaustion requirement. See

16

Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004) (holding that by

17

exhausting his procedural due process challenge in his state court petition,

18

petitioner had fairly presented his substantive due process claim that he was tried

19

while mentally incompetent because “the clear implication of his claim was that by

20

following a constitutionally defective procedure, the state court erred in finding

21

him competent.”).

22

exhaustion purposes when, by raising one claim, the petition clearly implies

23

another error. Id. at 788. Here, Mr. Jones’s state claim that the extraordinary delay

24

in the execution of sentence clearly encompassed any additional delays attributable

25

to the state, such as the current lack of an execution protocol. This augmented

26

allegation to Claim 27 only provided further factual support for the claim; it relies

27

on the same federal legal theory as well as the same operative facts. Gray v.

28

Netherland, 518 U.S. 152, 162-63, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996);

Claims are “sufficiently related” or “intertwined” for

5
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Gaitlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999). Accordingly, Claim 27 is

2

exhausted in its entirety.

3

B.

The Portion of Claim 27 Regarding California’s Lack of an Execution

4

Protocol Must be Deemed Exhausted Because California Does Not

5

Provide A Viable Forum for Mr. Jones to Present it.

6

Even if this Court finds that Claim 27 is partially unexhausted, this Court

7

should nevertheless consider that portion of Claim 27 because it would be futile for

8

Mr. Jones to return to state court. The exhaustion requirement applies only when

9

state remedies are available. See, e.g., Engle v. Isaac, 456 U.S. 107, 125-26 n.28,

10

102 S. Ct. 1558, 71 L.Ed.2d 783 (1982). “‘[I]n determining whether a remedy for

11

a particular constitutional claim is ‘available,’ the federal courts are authorized,

12

indeed required, to assess the likelihood that a state court will accord the habeas

13

petitioner a hearing on the merits of his claim.’” Phillips v. Woodford, 267 F.3d

14

966, 974 (9th Cir. 2001) (quoting Harris v. Reed, 489 U.S. 255, 268, 109 S. Ct.

15

1038, 103 L. Ed. 2d 308 (1989) (O’Connor, J., concurring)). “‘[F]ederal courts

16

should defer action only if there is some reasonable probability that (state) relief . .

17

. will actually be available.’” Matias v. Oshiro, 683 F.2d 318, 320 (9th Cir. 1982)

18

(quoting Powell v. Wyrick, 657 F.2d 222, 224 (8th Cir. 1981)); see also Sweet v.

19

Cupp, 640 F.2d 233, 236 (9th Cir. 1981) (holding petitioner need not exhaust state

20

remedies which would clearly be futile).

21

Here, Mr. Jones has insufficient state remedies available to him because of

22

the inevitable inordinate state court delay in resolving habeas corpus petitions and

23

the extreme unlikelihood that the state court would consider the claim on its merits.

24

As Mr. Jones detailed in his First Amended Petition and Opening Brief on Claim

25

27, the California Supreme Court summarily denies the overwhelming majority of

26

capital habeas corpus petitions without any explication of its reasoning and it is the

27

very rare circumstance in which it issues orders to show cause (eight percent of

28

habeas corpus proceedings) and the rarer circumstances that it holds an evidentiary
6
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

hearing (less than five percent of habeas corpus proceedings). See First Amended

2

Petition at 418, Petitioner’s Opening Br. on Claim 27 at 13-1, June 9, 2014, ECF

3

No. 109.1 Moreover, the California Supreme Court has denied claims similar or

4

identical to Claim 27 on the merits in forty-one decisions on direct appeal and

5

ninety-five orders in state habeas corpus proceedings, and has never found that a

6

petitioner has stated a prima facie case requiring the issuance of an order to show

7

cause, let alone granted relief on the claim. Far from demonstrating “a reasonable

8

probability that [state] relief will actually be available,” Matias, 683 F.2d at 320,

9

this dysfunctional system guarantees that the California Supreme Court will

10

conclude that he has not stated a prima facie case for relief. Phillips, 267 F.3d at

11

974.

12

C.

California’s Dysfunctional Death Penalty System Exempts Claim 27

13

From the Exhaustion Requirement.

14

Finally, regardless whether Claim 27 has been exhausted in its entirety, this

15

Court must consider it because the ineffectiveness of California’s corrective

16

process require that any unexhausted portion of the claim be excused from the

17

exhaustion requirement pursuant to 28 U.S.C. section 2254(b)(1)(B)(ii).2 As a

18
19
20
21
22
23
24
25
26
27

1

In this case specifically, the California Supreme Court took six and a half
years to summarily deny Mr. Jones’s habeas petition and it did not provide him a
hearing or resolve any factual disputes.
2

28 U.S.C. section 2254(b) provides:
(1) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that–
(A) the applicant has exhausted the remedies available in the courts
of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.

28
7
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

result of the extraordinary delay in this case, primarily due to the dysfunction of

2

California’s death penalty system, Mr. Jones’s rights to merits review outweigh the

3

jurisprudential concerns that underlie the exhaustion requirement. Mr. Jones has

4

been waiting for final review of his conviction and sentence for nineteen years, and

5

he will inevitably wait many more.

6

California Supreme Court appointed counsel to represent Mr. Jones in his

7

automatic appeal, over eight years passed between Mr. Jones’s sentencing and the

8

California Supreme Court’s affirmance of his sentence, and over six and a half

9

additional years passed before the Court ruled on Mr. Jones’s state habeas petition.

10

First Amended Petition at 415-17. There is simply no reasonable justification for

11

this delay, and there is “no end in sight” to the delay. See Phillips, 56 F.3d at 1035.

12

The delay is attributable only to the California state authorities’ failure to

13

adequately fund the system and decide cases in a prompt manner.

More than four years passed before the

14

Federalism and comity must give way in this case given the extreme delay.

15

“Although the requirement of exhaustion and its underlying principles form a

16

threshold test for habeas relief, they are designed as an ‘accommodation’ rather

17

than an ‘insuperable barrier.’” Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.

18

1991) (quoting Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 30 L. Ed.

19

2d 418 (1971)); see also Lee v. Stickman, 357 F.3d 338 (3d Cir. 2004) (exhaustion

20

excused because of eight-year delay in state post-conviction collateral

21

proceedings). The circumstances in this case render the California corrective

22

process ineffective to protect Mr. Jones’s rights. Accordingly, the requirement of

23

exhaustion should be excused as to the execution protocol portion of Claim 27.

24

See, e.g., Coe v. Thurman, 922 F.2d 528. 531 (9th Cir. 1990) (delay of three-years

25

and eight months from time of filing of notice of appeal in California direct appeal

26

excused exhaustion); Harris v. Champion, 15 F.3d 1538, 1556 (10th Cir. 1994)

27

(delay of more than two years from notice of appeal in direct appeal process gives

28

rise to a presumption that the process is ineffective); Wojtczak v. Fulcomer, 800
8
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

F.2d 353 (3d Cir. 1986) (three and one-half year delay inordinate); Lowe v.

2

Duckworth, 663 F.2d 42 (7th Cir. 1981) (three and one-half year delay inordinate);

3

Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (seventeen-month delay inordinate);

4

compare Hamilton v. Calderon, 134 F.3d 938 (9th Cir. 1998) (less than two-year

5

delay in review by California Supreme Court not extreme).3

6

Application of this exception to the exhaustion requirement is particularly

7

applicable to Claim 27, which is premised upon the lengthy delays inherent in

8

California system.

9

General’s insistence on requiring habeas corpus petitioners to return to the

10

California Supreme Court to exhaust state remedies has been a substantial reason

11

for the delay in the resolution of capital cases. Petitioner’s Opening Br. on Claim

12

27 at 12. Requiring Mr. Jones to return to the state courts to exhaust a small

13

portion of Claim 27 will result in years of additional litigation.

14

Opening Br. on Claim 27 at 12-13 (noting historical data that the California

15

Supreme Court takes over three years to resolve exhaustion petitions). Moreover,

16

the unconscionable delay that forms the basis of Claim 27 would only increase,

17

exacerbating the constitutional violation that Mr. Jones seeks to remedy. As one

18

court noted, “[i]t is the legal issues that are to be exhausted, not the petitioner.”

19

Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987) (citations omitted).

As detailed in Mr. Jones’s Opening Brief, the Attorney

Petitioner’s

20
21
22
23
24
25
26
27
28

“Inordinate delay” is different from and something less than “extraordinary
delay.” See Coe, 922 F.2d at 531 (“four years is an alarming amount of time”);
Phillips, 56 F.3d at 1034 n.3 (finding fifteen-year delay in guilt phase review
allows federal court to review guilt phase claims prior to state penalty phase
retrial). The decision to excuse exhaustion is affected by the nature of the
proceeding. To excuse a portion of an already exhausted claim excused from the
requirement due to inordinate delay requires a much less significant showing of
delay than to deem the entire penalty phase trial, appeal, and post-conviction
excessively delayed as in Phillips, 56 F.3d at 1035.
3

9
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

III. THE RIPENESS DOCTRINE DOES NOT PRECLUDE THE

2

GRANTING RELIEF ON CLAIM 27.

3

Respondent asserts that resolution of Claim 27 is not ripe for review insofar

4

as it relies upon the lack of a lethal injection protocol. Resp. Opening Br. at 4-5.

5

Respondent’s argument relies upon the assertion that “[a]ny delay in the execution

6

of Petitioner’s death sentence has not been attributable to the lack of an execution

7

protocol.” Resp. Opening Br. at 4 (emphasis omitted).

8

Respondent’s misconstrues this portion of Claim 27. To be sure, the absence

9

of a valid lethal injection protocol presents another reason why California’s death

10

penalty mechanism is dysfunctional and will give rise to significant litigation that

11

will delay or entirely preclude executions. As detailed in Mr. Jones’s Opening

12

Brief, however, the crux of his claim is that lack of a valid protocol and uncertainty

13

of the methods that California will adopt for carrying out executions “significantly

14

increase the psychological torture imposed on Mr. Jones by California’s death

15

penalty scheme.” Petitioner’s Opening Br. on Claim 27 at 37-40. Mr. Jones has

16

suffered these constitutional injuries for several years and will continue to suffer

17

them unless this Court resolves Claim 27 immediately. Under such circumstance,

18

the ripeness doctrine is inapplicable. See, e.g., Ohio Forestry Ass’n, Inc. v. Sierra

19

Club, 523 U.S. 726, 732-33, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998) (evaluating

20

“whether the courts would benefit from further factual development of the issues

21

presented” to determine whether ripeness doctrine applies); Duke Power Co. v.

22

Carolina Envt’l Study Group, Inc., 438 U.S. 59, 74-75, 98 S. Ct. 2620, 57 L. Ed. 2d

23

595 (1978) (holding ripe constitutional challenges to a statute because “delayed

24

resolution of these issues would foreclose any relief from the present injury

25

suffered by appellees”).

26

IV. THE LIMITATIONS CONTAINED IN 28 U.S.C. § 2254(D) DO

27

NOT PRECLUDE THE GRANTING RELIEF ON CLAIM 27.

28

Respondent argues that Mr. Jones’s claim is barred by 28 U.S.C. § 2254(d)
10
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

“because there is no clearly established law from the United States Supreme Court

2

endorsing a claim of cruel and unusual punishment for a lengthy delay between

3

conviction and execution of a capital sentence.”

4

Respondent’s argument fails for several reasons.

Resp. Opening Br. at 5.

5

First, respondent rests its argument entirely on applying section 2254(d) and

6

asserting that there is no clearly established federal law supporting Mr. Jones’s

7

claim. Resp. Opening Br. on Claim 27 at 5-7. Citing a 2006 Ninth Circuit case

8

that so held, respondent argues that federal habeas relief is barred. Resp. Opening

9

Br. at 7 (citing Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir. 2006)). But the

10

petitioner in Allen, unlike Mr. Jones, based his claim solely on Eighth Amendment

11

grounds. Compare Allen, 435 F.3d at 955 (noting that petitioner’s claim is that

12

twenty-three years under horrific conditions of confinement violate the Eighth

13

Amendment), with Petitioner’s Opening Br. on Claim 27 at 2-16, 25, 42-47 & n.17

14

(raising Equal Protection and due process grounds for relief). Allen is further

15

distinguishable because the uncertainty that exists about the final resolution in Mr.

16

Jones’s case, as set forth in Petitioner’s Opening Brief on Claim 27 at pages 37

17

through 41, has drastically increased since 2006, particularly in light of the

18

California Department of Corrections and Rehabilitation’s failure to lawfully

19

promulgate an execution protocol that comports with constitutional requirements.

20

These additional facts bring Mr. Jones’ claim in line with the clearly established

21

law set forth in his Opening Brief on Claim 27. See Petitioner’s Opening Br. at 25-

22

41 (citing the supporting clearly established federal law, including Rhodes v.

23

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981); Hutto v.

24

Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978); Estelle v. Gamble,

25

429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Trop v. Dulles, 356 U.S.

26

86, 101-02, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) (plurality opinion); In re

27

Medley, 134 U.S. 160, 172, 10 S. Ct. 384, 33 L. Ed. 835 (1890); and In re

28

Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890)). Similarly, since
11
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

2006, California’s death penalty system’s dysfunction has steadily increased such

2

that the California death penalty fails to further the penological goals of retribution

3

and deterrence. Petitioner’s Opening Br. at 2-25; see also section IV.D., infra.

4

Accordingly, Mr. Jones’s claim is distinguishable from Allen and squarely

5

governed by the clearly established federal law set forth in the Opening Brief on

6

Claim 27 and herein.

7

Second, and more fundamentally, respondent’s Opening Brief on Claim 27

8

entirely fails to address the threshold question a court must answer before it can

9

apply AEDPA deference: whether section 2254(d) is applicable.

Instead,

10

respondent assumes, without any support, that the state court’s adjudication of the

11

claim was an adjudication on the merits and that it resolved the identical claim

12

presented to this Court. Resp. Opening Br. on Claim 27 at 5-6. Section 2254(d),

13

however, applies only to claims that have been “adjudicated on the merits” in state-

14

court proceedings. 28 U.S.C. § 2254(d).

15

Third, respondent’s argument fails because respondent ignores the fact that

16

there are two ways in which a claim that has been adjudicated on the merits by the

17

state court may satisfy section 2254(d). The first, as noted by respondent, is if the

18

state court’s adjudication of the claim “resulted in a decision that was contrary to,

19

or involved an unreasonable application of, clearly established Federal law.” 28

20

U.S.C. § 2254(d)(1). For the reasons set forth below, Mr. Jones satisfies section

21

2254(d)(1). Mr. Jones may additionally satisfy section 2254(d) if the state court’s

22

adjudicated of his claim “resulted in a decision that was based on an unreasonable

23

determination of the facts in light of the evidence presented in the State court

24

proceeding.” 28 U.S.C. § 2254(d)(2).

25

Finally, respondent fails entirely to address the applicability of § 2254(d)(2).

26

Mr. Jones also satisfies § 2254(d)(2) for the reasons described below. Accordingly,

27

he is entitled to de novo review of his claim.

28
12
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

A.

Mr. Jones is Entitled to De Novo Review Because the State Court Did

2

Not Adjudicate His Claim on the Merits.

3

Where the state court “did not reach the merits of [the petitioner’s

4

constitutional] claim[,] federal habeas review is not subject to the deferential

5

standard that applies under AEDPA to ‘any claim that was adjudicated on the

6

merits in State court proceedings.’”; “[i]nstead, the claim is reviewed de novo.”

7

Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 1784, 173 L. Ed. 2d 701 (2009)

8

(quoting 28 U.S.C. § 2254(d)); see also Rompilla v. Beard, 545 U.S. 374, 390, 25

9

S. Ct. 2456, 2467, 162 L. Ed. 2d 360 (2005) (reviewing the prejudice prong of the

10
11
12

Strickland inquiry de novo because the state court did not reach prejudice).
1. The California Supreme Court never adjudicated Claim 27 as
presented to this Court.

13

In its opinion in Cullen v. Pinholster, the Supreme Court explicitly held that

14

“not all federal habeas claims by state prisoners fall within the scope of § 2254(d),

15

which applies only to claims ‘adjudicated on the merits in State court

16

proceedings.’” Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1401, 179 L. Ed.

17

2d 557 (2011) (holding the restrictions of section 2254(e)(2) applicable when

18

“federal habeas courts … decid[e] claims that were not adjudicated on the merits in

19

state court”). The Court further recognized that claims outside the scope of section

20

2254(d) may include instances where evidence developed after the conclusion of

21

state court proceedings produces a “new claim” for 2254(d) purposes, although

22

related in some way to a claim adjudicated on the merits in state court. Pinholster,

23

131 S. Ct. at 1401 n.10 (declining to “draw the line between new claims and claims

24

adjudicated on the merits” but noting that a hypothetical situation in which new

25

evidence arises after the state court has adjudicated a claim on the merits may well

26

give rise to a new claim). Though the Supreme Court did not “draw the line”

27

between new claims and previously adjudicated claims in Pinholster, it previously

28

has held that a claim involving evidence that “fundamentally alter[s] the legal
13
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

claim already considered by the state courts” is a claim that requires exhaustion.

2

Hillery, 474 U.S. at 260.

3

The Ninth Circuit, therefore, long has held that that a federal habeas claim is

4

sufficiently distinct from a claim previously presented to the state court “if new

5

factual allegations either fundamentally alter the legal claim already considered by

6

the state courts, or place the case in a significantly different and stronger

7

evidentiary posture than it was when the state courts considered it.” Dickens v.

8

Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (internal quotations omitted).

9

Following the Supreme Court decision in Pinholster, the Ninth Circuit held that a

10

claim that has not been fairly presented to a state court according to these

11

guidelines has not been “adjudicated on the merits” for purposes of section

12

2254(d). Id. at 1320 (rejecting “any argument that Pinholster bars the federal

13

district court’s ability to consider Dickens’s ‘new’ IAC claim” a claim that added

14

“extensive factual allegations” to the original ineffective assistance of counsel

15

claim presented in the state court); see also, e.g., Green v. Thaler, 699 F.3d 404,

16

420 (5th Cir. 2012); Roybal v. Chappell, No. 99CV2152-JM KSC, 2013 WL

17

6589381 (S.D. Cal. Dec. 16, 2013).

18

These well-established principles preclude any application of section

19

2254(d) to Claim 27. As detailed in the section I, supra, Claim 27 presents

20

substantially different factual and legal bases than the claim presented in the direct

21

appeal. In particular, Mr. Jones alleged facts regarding the state’s dysfunctional

22

system that fails to provide full, fair, and timely review of capital judgments and

23

which produces excessive delay that is unique among states with capital

24

punishment; the deplorable conditions at San Quentin that are psychologically

25

torturous, degrading, brutalizing, and dehumanizing; the high rate of deaths by

26

suicide or other causes at San Quentin compared to the few executions that have

27

occurred; the uncertainty of execution or even resolution of his case that results in

28

unconstitutional psychological trauma; and the excessive delay (fifteen years since
14
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

the imposition of the death judgment) that already has occurred and the “several

2

more years likely” to pass and under the conditions at San Quentin “would involve

3

the needless infliction of avoidable mental anguish and psychological pain and

4

suffering were it to occur.” Petition at 414-18.

5

Although respondent waived exhaustion of Claim 27,4 these facts

6

substantially altered the claim that was presented in the direct appeal and thus

7

Claim 27 is distinct from the claim that California Supreme Court resolved. See

8

e.g., Green, 699 F.3d at 420 (holding that where the state court rejected a

9

competency-to-be-executed claim in 2010, subsequent competency-to-be-executed

10

claim in the federal petition based on updated mental health evidence was a “new

11

claim”); Roybal, 2013 WL 6589381 (S.D. Cal. Dec. 16, 2013) (granting leave to

12

amend federal petition with new claims and rejecting state argument that 2254(d)

13

would foreclose consideration of them). Thus, the limitation contained in section

14

2254(d) are inapplicable and this Court must review the merits of the claim de

15

novo. See, e.g., Dickens, 740 F.3d at 1320.

16

2. The California Supreme Court did not adjudicate the appellate

17

claim on the merits.

18

Similarly, section 2254(d) is inapplicable to the portion of the claim that was

19

presented in the direct appeal. The state court’s adjudication of Mr. Jones’s claim

20

contains no citation to federal law; rather, it simply deems Mr. Jones’ claim

21

“untenable” and concludes that Mr. Jones cannot demonstrate prejudice because

22

any delay will have prolonged his life if the judgment is affirmed and he will not

23

have been prejudiced – in other words, he will not be executed – if the judgment is

24

reversed. Jones, 29 Cal. 4th at 1267. The state court thus did not reach the

25

question of whether the physical conditions under which Mr. Jones has suffered

26
27
28

4

As noted above, respondent’s express waiver of exhaustion estops
respondent from reliance on the exhaustion requirement. 28 U.S.C. § 2254(b)(3).
15
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

and continues to suffer, as well as the mental anguish his circumstances have

2

engendered while awaiting execution, constitute cruel and unusual punishment.

3

Although the Supreme Court has held that there is a presumption that such a

4

state court denial of a claim constitutes an adjudication on the merits, even when

5

the state court does not address a petitioner’s claim, this presumption is rebuttable:

6

“When a federal claim has been presented to a state court and the state court has

7

denied relief, it may be presumed that the state court adjudicated the claim on the

8

merits in the absence of any indication or state-law procedural principles to the

9

contrary.” Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 784-85 (2011)

10

(emphasis added). Here, state-law procedural principles defeat the presumption

11

that the state court adjudicated Mr. Jones’ claim on the merits.

12

State law procedural principles dictate that the state court decide Mr. Jones’s

13

based solely on the appellate record and ignore the additional facts Mr. Jones cited

14

in support of his claim.5 See, e.g., People v. Barnett, 17 Cal. 4th 1044, 1183, 74

15

Cal. Rptr. 2d 121 (1998) (declining to consider a capital defendant’s claim that

16
17
18
19
20
21
22
23
24
25
26
27
28

5

The state court’s precedent in other cases is relevant to assessing its
adjudication of Mr. Jones’s claim because “[c]ourts are as a general matter in the
business of applying settled principles and precedents of law to the disputes that
come to bar.” Beam Distilling Co. v. Georgia, 510 U.S. 529, 534 (1991). The
state court is presumed to have applied already decided legal principles and
precedents when those principles and precedents predate the events on which the
dispute turns. Id. That the state court applied these principles in Mr. Jones’s case
is further supported by the fact that the California Supreme Court continued to
apply this precedent to similar claims in the years following its adjudication of
Mr. Jones’s claim. See, e.g., People v. Ledesma, 39 Cal. 4th 641, 745, 47 Cal.
Rptr. 3d 326, 417 (2006) (holding that defendant’s claim that execution after more
than twenty-five years of imprisonment constitutes cruel and unusual punishment
could not be resolved based on the appellate record and citing Barnett in support);
People v. Carter, 36 Cal. 4th 1114, 1213, 32 Cal. Rptr. 3d 759 (2005) (declining
to resolve a claim that execution following lengthy and torturous confinement
constitutes cruel and unusual punishment and citing Barnett in support).
16
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

execution after inordinate delay violated the Eighth Amendment’s Cruel and

2

Unusual Punishment Clause because it relied on “evidence and matters not

3

reflected in the record on appeal,” and the state court’s review on direct appeal is

4

limited to the appellate record) (citing People v. Sanchez, 12 Cal. 4th 1, 59, 47 Cal.

5

Rptr. 2d 843 (1995), disapproved of other ground by People v. Doolin, 45 Cal. 4th

6

390, 87 Cal. Rptr. 3d 209 (2009); People v. Szeto, 29 Cal. 3d 20, 35, 171 Cal. Rptr.

7

652 (1981)).

8

foreclosed the state court’s use of the facts that petitioner placed before the court in

9

support of his argument that the conditions he endured (and endures) while

10

awaiting execution constitute cruel and unusual punishment; they similarly

11

foreclosed the state court’s use of the facts petitioner set forth in support of the

12

argument that his execution after a lengthy delay is unconstitutional. See Barnett,

13

17 Cal. 4th at 1183; Sanchez, 12 Cal. 4th at 59; Szeto, 29 Cal. 3d at 35. Taken

14

together with the state court’s failure to address the portion of Mr. Jones’ claim

15

related to the physical conditions under which Mr. Jones has suffered and

16

continues to suffer, as well as the mental anguish his circumstances have

17

engendered while awaiting execution, this rebuts the presumption that the state

18

court adjudicated Mr. Jones’ claim on the merits. Accordingly, section 2254(d)

19

does not apply and Mr. Jones is entitled to de novo review. See, e.g., Winston v.

20

Kelly, 592 F.3d 555-56 (4th Cir. 2010) (“If the record ultimately proves to be

21

incomplete, deference to the state court’s judgment would be inappropriate because

22

judgment on a materially incomplete record is not an adjudication on the merits for

23

purposes of § 2254(d).”), aff’d 683 F.3d 489, 498-99 (4th Cir. 2012).

24

B.

This precedent makes clear that state-law procedural principles

Mr. Jones Satisfies Section 2254(d) Because the State Court Had Before

25

It, But Ignored, the Facts Supporting His Claim, and Because the State

26

Court Based Its Ruling on Incorrect Factual Assumptions.

27

Even if the state court adjudicated Mr. Jones’s claim on the merits, Mr. Jones

28

nevertheless surmounts section 2254(d) because the state court had before it, but
17
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

ignored, the facts supporting his claim, and because the state court based its ruling

2

on incorrect factual assumptions. As set forth above, in reaching its conclusion

3

that Mr. Jones did not suffer (and will not suffer) any prejudice, the state court

4

undoubtedly failed to consider the facts and authorities establishing the existence

5

of psychological harm from uncertain, but lengthy, pre-execution delays in support

6

of Mr. Jones’s claim. In addition, the state court made several factual assumptions

7

rooted in either incomplete evidence or no evidence, and, as a consequence, made

8

erroneous factual findings.

9

First, the state court appears to have assumed that any delay was attributable

10

to Mr. Jones and a function of Mr. Jones availing himself of his rights to review. In

11

adjudicating Mr. Jones’ claim, the state court quoted and cited People v. Anderson,

12

which rejected the appellant’s claim in part because “the automatic appeal process

13

following judgments of death is a constitutional safeguard, not a constitutional

14

defect . . . because it assures careful review of the defendant’s conviction and

15

sentence.” Anderson, 25 Cal. 4th at 605 (internal citations omitted).

16

Anderson, in turn, relied on two previous California Supreme Court

17

opinions. People v. Hill, 3 Cal. 4th 959, 1015-16, 13 Cal. Rptr. 2d 475 (1992),

18

overruled on other grounds by Price v. Superior Court, 25 Cal. 4th 1046, 108 Cal.

19

Rptr. 2d 409 (2001); People v. Frye, 18 Cal. 4th 894, 1030, 77 Cal. Rptr. 2d 25

20

(1998), disapproved of on other grounds by People v. Doolin, 45 Cal. 4th 390, 87

21

Cal. Rptr. 3d 209 (2009). In both Hill and Frye, the California Supreme Court held

22

that pre-execution delays did not violate the Eighth Amendment because the delay

23

was a function of the time it took the capital defendant to avail himself of his rights

24

to review. Hill, 3 Cal. 4th at 1015-16; Frye, 18 Cal. 4th at 1030-31. These cases

25

are consistent with subsequent state court jurisprudence attributing any pre-

26

execution delay to the petitioner because he wishes to appeal his sentence. See,

27

e.g., People v. Ochoa, 26 Cal. 4th 398, 463, 110 Cal. Rptr. 2d 324 (2001) (issuing

28

direct appeal opinion in capital defendant’s case nine years after final judgment and
18
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

describing defendant as “delaying his execution for these past nine years”),

2

abrogated on other grounds as stated in People v. Coombs, 34 Cal. 4th 821, 860

3

(1995).6 The state court so concluded despite Mr. Jones’s assertion on direct

4

appeal that the delay in his case is “the result of the nature of the [appellate and

5

post-conviction] process and no fault of his own,” Appellant’s Opening Br. at 240,

6

and the existence of significant evidence in the state court’s possession of its own

7

dysfunctional system supporting Mr. Jones’ assertion, see Petitioner’s Opening Br.

8

on Claim 27 at 2-16.

9

Second, the state court concluded in Anderson that the defendant had “no

10

conceivable complaint” of prejudice from the pre-execution delay because “life

11

without possibility of parole was the minimum sentence he faced.” 25 Cal. 4th at

12

606. In so concluding, the state court made a factual determination in Mr. Jones’s

13

case that inmates on death row endure conditions comparable to those experienced

14

by inmates sentenced to life without the possibility of parole. The state court made

15

this factual determination based on an assumption; if it considered any evidence in

16

support of this conclusion, such evidence was incomplete, as the state court’s

17

factual determination was incorrect. See Petitioner’s Opening Br. on Claim 27 at

18

25-41.

19

Each of these factual errors render the state court’s adjudication of Mr.

20

Jones’ claim an unreasonable application of clearly established federal law under

21

section 2254(d)(1). Porter v. McCollum, 558 U.S. 30, 42, 123 S. Ct. 2527, 156 L.

22
23
24
25
26
27
28

6

This reasoning also contravenes Supreme Court precedent holding that the
idea that a petitioner should be forced to forfeit one set of fundamental
constitutional rights in order to vindicate a second set of constitutional rights is
“intolerable.” Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976,
19 L. Ed. 2d 1247 (1968). “Obviously, where the state court’s legal error infects
the fact-finding process, the resulting factual determination will be unreasonable
and no presumption of correctness can attach to it.” Taylor v. Maddox, 366 F.3d
992, 1001 (9th Cir. 2004).
19
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

Ed. 2d 471 (2009) (concluding that the state court unreasonably applied clearly

2

established federal law because it “did not consider or unreasonably discounted”

3

facts in the record before it); Wiggins v. Smith, 539 U.S. 510, 528, 123 S. Ct. 2527,

4

156 L. Ed. 2d 471 (2003) (finding that the state court made incorrect assumptions

5

about the facts and “based its conclusion, in part, on a clear factual error” and

6

“[t]his partial reliance on an erroneous factual finding . . . highlights the

7

unreasonableness of the state court’s decision”).

8

consider relevant facts further constitutes an unreasonable determination of the

9

facts, and Mr. Jones thus satisfies section 2254(d)(2). Miller-El v. Cockrell, 537

10

U.S. 322, 346 (2003) (holding that § 2254(d)(2) is satisfied where state court “had

11

before it, and apparently ignored,” relevant factual information); Ali v. Hickman,

12

571 F.3d 902, 921 (9th Cir. 2009) (holding that § 2254(d)(2) was satisfied where

13

state court ignored comparative juror analysis information in the record, when

14

adjudicating Batson claim); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)

15

(ruling that the state court fact-finding process is undermined, and § 2254(d)(2) is

16

satisfied, “where the state has before it, yet apparently ignores, evidence that

17

supports petitioner’s claim”).

18

C.

The state court’s refusal to

The State Court’s Holding That Mr. Jones Suffered No Conceivable

19

Prejudice is Contrary To Clearly Established Federal Law.

20

On direct appeal, the state court held that Mr. Jones’ argument was

21

“untenable” because, “If the appeal results in reversal of the death judgment, he

22

has suffered no conceivable prejudice, while if the judgment is affirmed, the delay

23

has prolonged his life.” Jones, 29 Cal. 4th at 1267. The state court’s conclusion

24

that Mr. Jones suffered no conceivable prejudice thus necessarily rested on the

25

assumption articulated by the state court in Hill and Frye that the Eighth

26

Amendment cannot not be violated if an inmate’s conviction and sentence are

27

obtained without error. See Hill, 3 Cal. 4th at 1015 (holding “the inherent-delay

28

argument is untenable in a capital case, like this one, in which the judgment as to
20
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

the defendant’s guilt and death-eligibility, i.e., a statutory special circumstance, are

2

affirmed on appeal.”); Frye, 18 Cal. 4th at 1031 (endorsing the position that it

3

would be a “mockery of justice” if appellant had his sentence reversed because of

4

the time it took for him to pursue unmeritorious claims). The state court thus

5

essentially declined to consider Mr. Jones’ claim that the Constitution prohibits his

6

execution based on its conclusion that his conviction and sentence were obtained

7

without error.7

8

This conclusion is contrary to well-established Supreme Court jurisprudence

9

for two reasons. First, it is contrary to established federal law acknowledging that

10

the Eighth Amendment may be violated by the execution of an inmate, even if his

11

conviction and sentence were obtained without error, based on conditions and facts

12

that have emerged since the time that his sentence was imposed.

13

Wainwright, 477 U.S. 399, 417-18, 105 S. Ct. 2595, 91 L. Ed. 2d 335 (1986); see

14

also Hall v. Florida, ___ U.S. ___, 134 S. Ct. 1986, 2001 (May 27, 2014) (“The

15

death penalty is the gravest sentence our society may impose. Persons facing that

16

most severe sanction must have a fair opportunity to show that the Constitution

17

prohibits their execution.”). Second, the court’s conclusion rests on the assumption

18

that Mr. Jones’ claim of cruel and unusual punishment is limited to the act of

19

execution. This is not so; as Mr. Jones made clear, the conditions under which he

20

has been forced to live and the mental anguish he has endured during this period of

21

delay, while awaiting execution, constitute cruel and unusual punishment. The

22

state court’s dismissal of this claim runs contrary to federal law that has clearly

23

established that conditions of confinement and uncertainties surrounding execution

Ford v.

24
25
26
27
28

7

As Mr. Jones has demonstrated in prior briefing, the state court’s
conclusion that Mr. Jones’ conviction and sentence were obtained without error
was also incorrect.
21
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

may violate the Eighth Amendment.8 See Petitioner’s Opening Br. at 25-41 (citing

2

clearly established federal law in support of petitioner’s position).

3

D.

Mr. Jones Satisfies Section 2254(d) Because the State Court Standard is

4

Contrary to Clearly Established Federal Law Regarding the Penological

5

Purposes of the Death Penalty.

6

The state court’s jurisprudence – which it is presumed to have followed in

7

Mr. Jones’s case, see n.5, supra – is also contrary to clearly established federal law

8

regarding principles of retribution and deterrence. In People v. Ochoa, the state

9

court first addressed a capital defendant’s claim that execution after lengthy delay

10

cannot serve any legitimate penological ends.9 Ochoa, 26 Cal. 4th at 462-64. The

11

court rejected the defendant’s claim, concluding “that execution notwithstanding

12

the delay associated with defendant’s appeals furthers both the deterrent and

13

retributive functions; shielding defendant from execution solely on this basis

14

would frustrate these two penological purposes.” Id. at 464. More specifically, the

15

state court concluded––without any citation or factual support––that the conditions

16

of confinement on death row would only serve to enhance the deterrent effect of

17

the death penalty and that “an announcement by this court that any defendant

18

whose automatic appeal has been pending for many years is exempt from

19

subsequent execution would eviscerate any possible deterrent effect of a death

20

sentence.” Id. at 463. The state court’s conclusions regarding deterrence are

21

contrary to clearly established federal law. Established federal law makes clear

22

that “it is fanciful to believe” that a prospective capital defendant in a particular

23
24
25
26
27
28

8

As noted above, Mr. Jones satisfies section 2254(d) because the state court
failed entirely to adjudicate this portion of Mr. Jones’ claim.
9

Mr. Jones, like the defendant in Ochoa, claimed that his execution after
lengthy delay serves no legitimate penological purpose. Appellant’s Opening
Brief at 229-43.
22
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

category of offenders would be deterred by the knowledge that a small number of

2

persons within this category of offenders have been executed.

3

Oklahoma, 487 U.S. 815, 838, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988); see also

4

Enmund v. Florida, 458 U.S. 782, 800, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)

5

(concluding that rare imposition of the death penalty upon a class of offenders

6

“further attenuates its possible utility as an effective deterrence”).

Thompson v.

7

Similarly, the state court’s conclusion that “the passage of time and alteration

8

of circumstances have no bearing on” the analysis of whether a particular

9

punishment serves a retributive purpose, Ochoa, 26 Cal. 4th at 463, is contrary to

10

well-established legal principles. Federal law is clear that the passage of time and

11

alteration of circumstances are relevant factors in assessing the retributive value of

12

the death penalty, particularly when these factors result in the execution of a

13

random few. Furman v. Georgia, 408 U.S. 238, 304-05, 92 S. Ct. 2726 33 L. Ed.

14

2d 346 (1972) (Brennan, J., concurring) (“The asserted public belief that murderers

15

. . . deserve to die is flatly inconsistent with the execution of a random few.”); id. at

16

311 (White, J., concurring) (“When imposition of the penalty reaches a certain

17

degree of infrequency, it would be very doubtful that any existing general need for

18

retribution would be measurably satisfied.”).

19

defined by the Supreme Court as “an expression of community outrage.” Spaziano

20

v. Florida, 468 U.S. 447, 461, 104 S. Ct. 3154 82 L. Ed. 2d 340 (1984). That the

21

passage of time and alteration of circumstances have no bearing on the expression

22

of community outrage squarely contradicts the Supreme Court’s longstanding

23

recognition that the Eighth Amendment “draw[s] its meaning from the evolving

24

standards of decency that mark the progress of a maturing society.” Trop v. Dulles,

25

356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630 (1958) (plurality opinion);

26

see also Enmund v. Florida, 458 U.S. at 788; Coker v. Georgia, 433 U.S. 584, 593-

27

95, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (plurality opinion); Weems v. United

28

States, 217 U.S. 349, 373-78, 30 S. Ct. 433, 54 L. Ed. 793 (1910).

Moreover, retribution has been

23
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

V. THIS COURT’S ANALYSIS OF THE STATUS OF THE

2

DEATH SENTENCES IMPOSED BETWEEN 1978 AND 1997

3

FULLY SUPPORTS GRANTING OF RELIEF ON CLAIM 27.

4

In its June 10, 2014 Order, this Court attached a chart of the individuals

5

sentenced to death in California between 1979 and 1997 and the status of their

6

cases. The Court invited the parties “to address the chart and the troubling issues it

7

raises.” Order Amending Briefing Schedule and Setting Hearing on Claim 27 at 3,

8

ECF No. 110.10

9

This Court’s chart – which analyzes the cases of the 507 people sentenced

10

between 1978 and 1997 – fully supports the conclusion that “executing those

11

essentially random few who outlive the dysfunctional post-conviction review

12

process serves no penological purpose and is arbitrary in violation of well-

13

established constitutional principles.” Order at 2. Almost forty percent (39.6) of

14

those cases are still pending before the California courts, for direct appeal or

15

collateral review, or for the purposes of federal exhaustion. In short, 201 of those

16

individuals have been waiting more seventeen years – in some cases up to thirty-

17

five years – for federal review and adjudication of their claims. Seventy-nine

18

individuals – 15.6 percent of those sentenced in that 20-year period – have died

19

from causes other than execution. Nearly three times the number of those executed

20

have had their death sentenced vacated by the federal courts. Other studies have

21

demonstrated that sixty percent of California death sentences are reversed by the

22
23
24
25
26
27
28

10

Counsel for Mr. Jones conducted a review of the cases and identified some
additional or different information for a few of the cases. The suggested
modifications to the chart are indicated in track changes in the attachment to this
brief. Among these suggestions are the addition of fifteen cases not currently
reflected in the chart that are pending in state court proceedings and the removal
of duplicate entries. The numbers used in this brief correspond with those on the
attached chart.
24
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC

1

federal courts, Ex. 14 to Petitioner’s Opening Brief on Claim 27 at 632, ECF No.

2

109-3, while 1.7 percent of death sentences in California have actually resulted in

3

execution.11 Meanwhile, the more recent statistics included in Mr. Jones’s Opening

4

Brief demonstrate that the delay inherent in the California’s dysfunctional state

5

court system has increased dramatically for those sentenced since 1997.

6

Petitioner’s Opening Br. at 8.

7

VI. CONCLUSION

8

For the foregoing reasons, Mr. Jones is entitled to relief on Claim 27.

9
10

Dated: July 3, 2014

11

Respectfully submitted,
HABEAS CORPUS RESOURCE CENTER

12
13

By: / s / Michael Laurence
Michael Laurence

14

Attorneys for Petitioner Ernest DeWayne Jones

15
16
17
18
19
20
21
22
23
24
25
26
27
28

11

This figure is calculated by dividing the total number of executions since
1978 (thirteen in California), see Ex. 13 to Petitioner’s Opening Br. on Claim 27
at 630, ECF. No. 109-3, by the total number of inmates sentenced to death since
1978 (746), see Div. of Adult Ops., Cal. Dep’t of Corr. and Rehab., Condemned
Inmate Summary List (July 3, 2014), http://www.cdcr.ca.gov/Capital_Punishment/
docs/CondemnedInmateSummary.pdf.
25
Response to Respondent’s Opening Brief on Claim 27

Case No. CV-09-2158-CJC