Dickey v. Ylst

Filing 108

ORDER Regarding Merits Briefing of Federal Petition signed by District Judge Anthony W. Ishii on 10/08/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLIN RAKER DICKEY,
Petitioner,

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vs.
KEVIN CHAPPELL, as Acting Warden
of San Quentin State Prison,
Respondent.

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Case No.: 1:06-cv-00357 –AWI-P
DEATH PENALTY CASE
ORDER REGARDING MERITS BRIEFING OF
FEDERAL PETITION

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Petitioner Colin Raker Dickey (“Dickey”) filed his federal habeas petition, without supporting

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points and authorities, October 4, 2007. Dickey’s petition was determined to contain unexhausted

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claims and abeyance was granted May 21, 2008. During the pendency of Dickey’s state exhaustion

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petition, counsel representing Dickey withdrew, and new counsel was appointed on June 13, 2012.

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The California Supreme Court summarily denied Dickey’s state exhaustion petition May 23, 2012.

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Respondent Kevin Chappell (“the Warden”) file his Answer, also without points and

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authorities, August 30, 2013. A Joint Statement regarding a proposed schedule for merits briefing was

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concurrently filed, but the parties were unable to agree on a briefing schedule. Dickey proposes to

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brief Claim 13 first, as it alleges the prosecutor knowingly failed to correct a false impression that the

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prosecution had not done witness Buchanan any favors which might reflect on his credibility, and that

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the prosecutor exploited the false impression in his argument to the jury. Dickey contends this claim

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can be resolved on the record as it was presented to the state court on direct appeal, no factual

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development is needed for its resolution, and if it is granted, the remaining claims in the federal
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petition will be moot. The Warden prefers to address all merits claims in one pleading, but

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alternatively would like the briefing divided into as few pleadings as possible.

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A review of the the California Supreme Court’s opinion on direct appeal and Dickey’s federal

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petition reveal that many claims involve Gene Buchanan, the Napue claim (presented in Claim 13), a

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Brady claim about his narcotics charge, and numerous ineffective assistance of counsel claims about

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the theory that Buchanan, and not Dickey, was the actual co-perpetrator with Richard Cullumber. The

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interrelation of those claims make it unlikely that Claim 13 can be resolved independently.

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The parties shall meet and confer within the next 30 days, and on or before November 15,

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2013, file a proposed schedule for merits briefing which addresses all the claims presented in the

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federal petition.

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IT IS SO ORDERED.

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Dated: October 8, 2013 .
/s/ Anthony W. Ishii .
ANTHONY W. ISHII
United States District Judge

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