Ernest DeWayne Jones v. Robert K. Wong

Filing 76

STATEMENT JOINT STIPULATION AND [PROPOSED] ORDER RE: SCHEDULE FOR MERITS BRIEFING UNDER 28 U.S.C. § 2254(d)(1) and 2254(d)(2) filed by Petitioner Ernest DeWayne Jones (Plunkett, Cliona)

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MICHAEL LAURENCE, State Bar No. 121854
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Petitioner ERNEST DEWAYNE JONES

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KAMALA D. HARRIS
Attorney General of the State of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
XIOMARA COSTELLO
Supervising Deputy Attorney General
HERBERT S. TETEF (State Bar No. 185303)
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Respondent

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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Ernest Dewayne Jones,

Case No. CV-09-2158-CJC

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Petitioner,

DEATH PENALTY CASE

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v.

JOINT STIPULATION AND
[PROPOSED] ORDER RE:
SCHEDULE FOR MERITS
BRIEFING UNDER 28 U.S.C. §
2254(d)(1) and 2254(d)(2)

Michael Martel, Acting Warden of
California State Prison at San Quentin,
Respondent

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JOINT BRIEFING SCHEDULE
CV-09-2158-CJC

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On March 26, 2012, this Court denied petitioner’s motion for an evidentiary

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hearing, without prejudice, and ordered the parties to submit a proposed briefing

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schedule. Order, Mar. 26, 2012, ECF No. 75. The Court ordered petitioner to set forth

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how each claim satisfies 28 U.S.C. section 2254(d)(1) and/or section 2254(d)(2) of the

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Antiterrorism and Effective Death Penalty Act on the basis of the record before the

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state court.

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Counsel for the parties have conferred regarding the proposed briefing schedule.

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Although counsel are uncertain whether the Court’s Order of March 26, 2012

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contemplates the merits briefing of all claims in the Petition or only those claims in

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petitioner’s motion for evidentiary hearing, the parties agree that it is in the interest of

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judicial economy and efficiency for the parties to brief the merits of all claims in the

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Petition rather than bifurcating the merits briefing of claims.

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Counsel for petitioner informed counsel for respondent of the substantial

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litigation demands on Mr. Michael Laurence and Ms. Cliona Plunkett over the next

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several months, and proposed a briefing schedule that would grant petitioner eight

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months in which to prepare his initial briefing. Counsel for respondent stated his

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position that each party should have ninety days to prepare their initial briefing. The

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parties were unable to reach agreement as to a proposed briefing schedule and

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therefore submit separate proposed briefing schedules.

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Petitioner’s Proposed Briefing Schedule:

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This Court’s order requests a schedule for the filing of extensive merits briefing

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on the thirty claims contained in the Petition during an extraordinarily demanding time

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for petitioner’s counsel.

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significant number of unexpected staff departures at the Habeas Corpus Resource

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Center (HCRC)—including a staff attorney assigned to petitioner’s case—and the

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number of upcoming filings that petitioner’s counsel have in other capital cases,

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coupled with the complexity of the factual and legal issues presented by the record in

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this case, precludes the filing of the merits briefing prior to December 2012. Ms.

The exponential increase in workload occasioned by a

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JOINT BRIEFING SCHEDULE
CV-09-2158-CJC

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Patricia Daniels, who was assigned to represent petitioner throughout the state court

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proceedings and in this Court, resigned her position at the HCRC, and thus is

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unavailable to prepare the merits briefing.

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Laurence must prepare and file state habeas corpus petitions in two cases, informal

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reply briefs in three state cases, and a federal habeas corpus petition in two cases. In

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addition, Mr. Laurence must prepare and file post-evidentiary hearing briefing in

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Ashmus v. Chappelle, No. 93-CV-00594 (N.D. Cal.) and a motion for an evidentiary

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hearing in Taylor v. Chappelle, No. CV-07-6602 (C.D. Cal.). Ms. Plunkett must

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devote significant time to matters in other cases in the next six months. She is

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preparing a denial or traverse to a return to an order to show cause with a due date of

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May 7, 2012. She also is involved in the preparation of a state habeas corpus petition

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with an estimated due date of November 13, 2012. Moreover, the HCRC is obliged to

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participate in the California Judicial Branch’s mandatory furlough program, which

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requires counsel to take one furlough day a month.

In the next eight month period, Mr.

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Counsel anticipates the need to devote a substantial amount of time to

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researching and drafting petitioner’s entitlement to relief on each of the thirty claims, a

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task that has not yet been performed by counsel. In addition, as previously noted by

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counsel, briefing the application of 28 U.S.C. section 2254(d) to petitioner’s claims in

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light of the recent United States Supreme Court decisions, including Martinez v. Ryan,

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___ U.S. ___, slip op. at 6 (Mar. 20, 2012) (holding that “[i]nadequate assistance of

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counsel at initial-review collateral proceedings may establish cause for a prisoner’s

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procedural default of a claim of ineffective assistance at trial”); Missouri v. Frye, ___

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U.S. ___ (Mar. 21, 2012) (holding that trial counsel’s failure to inform defendant of

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state’s plea offers was deficient representation under Strickland v. Washington, 466

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U.S. 668 (1984)); Lafler v. Cooper, ___ U.S. ___ (Mar. 21, 2012) (holding, on habeas

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corpus, that trial counsel’s deficient advice concerning state’s plea offer was

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prejudicial under Strickland v. Washington, 466 U.S. 668 (1984); and that 28 U.S.C.

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section 2254(d) does not bar habeas corpus relief), Cullen v. Pinholster, 563 U.S. ___,
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JOINT BRIEFING SCHEDULE
CV-09-2158-CJC

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131 S. Ct. 1388 (2011) (holding that analysis under 28 U.S.C. section 2254(d) is

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limited to the record before the state court), and Harrington v. Richter, __ U.S. __, 131

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S. Ct. 770 (2011) (holding that the deference required under 2254(d)(1) applies to

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summary denials), will require careful analysis, particularly on issues that are affected

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by application of those cases by the Court of Appeals for the Ninth Circuit.

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In light of the workload demands, discussed above, and the substantial work
envisioned by this Court’s order, counsel for petitioner proposes the following:
Petitioner’s opening brief addressing how each claim satisfies 28 U.S.C. section
2254(d)(1) and/or (d)(2) will be filed no later than December 17, 2012.
Respondent’s opposition shall be filed ninety (90) days after petitioner’s
opening brief.
Petitioner’s reply to respondent’s opposition will be filed no later than ninety
(90) days after respondent’s opposition.

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Respondent’s Proposed Briefing Schedule:

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Counsel for respondent submits that the eight-month period proposed by

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petitioner to file his brief is unduly lengthy and unwarranted. Petitioner’s claims for

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relief have already been presented in a 432-page Petition.

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litigation, Petitioner need only brief why the state court’s denial of those claims

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violated 28 U.S.C. section 2254(d)(1) and/or (d)(2). Furthermore, the briefing will

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necessarily be limited in scope by the requirement that the discussion be limited to

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matters contained in the state court record. Counsel for respondent also notes that the

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Petition was filed in this case over two years ago, on March 10, 2010.

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Therefore, counsel for respondent proposes the following:

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Petitioner’s opening brief addressing how each claim satisfies 28 U.S.C. section

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At this point in the

2254(d)(1) and/or (d)(2) will be filed no later than July 16, 2012.
Respondent’s opposition shall be filed ninety (90) days after petitioner’s
opening brief.
Petitioner’s reply to respondent’s opposition will be filed no later than forty-five
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JOINT BRIEFING SCHEDULE
CV-09-2158-CJC

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(45) days after respondent's opposition.

The parties stipulate that either parry may, based on good cause, request
extend the deadline for f.tlirg any of the above referenced pleadings.

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Dated: April l+2012

Respectfully

submitted,

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HABEAS CORPUS RESOURCE CENTER

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')lLL--/-a'V^-

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Bv: MICHAEL LAI.IRENCE
Attorneys for Ernest Dewayne Jones

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Dated: April 12,2012

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ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA

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Bv: HERBERT

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S. TETEF

D'eoutv Attornev General
Attbrrieys for R6spondent

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JOINT BRIEFING SCT{EDULE

cv-09-2158-cJc

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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Ernest Dewayne Jones,

Case No. CV-09-2158-CJC

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Petitioner,

DEATH PENALTY CASE

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v.

[PROPOSED] ORDER RE:
SCHEDULE FOR MERITS
BRIEFING UNDER 28 U.S.C. §
2254(d)(1) and 2254(d)(2)

Vincent Cullen, Acting Warden of
California State Prison at San Quentin,
Respondent.

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The Court is in receipt of the parties’ Joint Stipulation Re: Schedule for Merits

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Briefing Under 28 U.S.C. § 2254(d)(1) and 2254(d)(2) lodged with the Court on April

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12, 2012. Petitioner shall file his opening brief addressing how each claim satisfies 28

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U.S.C. section 2254(d)(1) and/or (d)(2) on or before

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Respondent shall file an Opposition

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Petitioner shall file a Reply

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IT IS SO ORDERED.

days after Petitioner’s opening brief, and
days after Respondent’s Opposition.

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Dated: _________________
CORMAC J. CARNEY
United States District Judge

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[PROPOSED] ORDER RE SCHEDULE FOR MERITS BRIEFING
CV-09-2158-CJC

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Submitted on April 12, 2012

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By:

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HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]

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/s/
MICHAEL LAURENCE
Attorney for Petitioner

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[PROPOSED] ORDER RE SCHEDULE FOR MERITS BRIEFING
CV-09-2158-CJC