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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 COLIN RAKER DICKEY, Petitioner, 10 11 12 13 14 vs. KEVIN CHAPPELL, as Acting Warden of San Quentin State Prison, Respondent. ) ) ) ) ) ) ) ) ) ) Case No.: 1:06-cv-00357 –AWI-P DEATH PENALTY CASE ORDER REGARDING MERITS BRIEFING OF FEDERAL PETITION 15 16 Petitioner Colin Raker Dickey (“Dickey”) filed his federal habeas petition, without supporting 17 points and authorities, October 4, 2007. Dickey’s petition was determined to contain unexhausted 18 claims and abeyance was granted May 21, 2008. During the pendency of Dickey’s state exhaustion 19 petition, counsel representing Dickey withdrew, and new counsel was appointed on June 13, 2012. 20 The California Supreme Court summarily denied Dickey’s state exhaustion petition May 23, 2012. 21 Respondent Kevin Chappell (“the Warden”) file his Answer, also without points and 22 authorities, August 30, 2013. A Joint Statement regarding a proposed schedule for merits briefing was 23 concurrently filed, but the parties were unable to agree on a briefing schedule. Dickey proposes to 24 brief Claim 13 first, as it alleges the prosecutor knowingly failed to correct a false impression that the 25 prosecution had not done witness Buchanan any favors which might reflect on his credibility, and that 26 the prosecutor exploited the false impression in his argument to the jury. Dickey contends this claim 27 can be resolved on the record as it was presented to the state court on direct appeal, no factual 28 development is needed for its resolution, and if it is granted, the remaining claims in the federal 1 1 petition will be moot. The Warden prefers to address all merits claims in one pleading, but 2 alternatively would like the briefing divided into as few pleadings as possible. 3 A review of the the California Supreme Court’s opinion on direct appeal and Dickey’s federal 4 petition reveal that many claims involve Gene Buchanan, the Napue claim (presented in Claim 13), a 5 Brady claim about his narcotics charge, and numerous ineffective assistance of counsel claims about 6 the theory that Buchanan, and not Dickey, was the actual co-perpetrator with Richard Cullumber. The 7 interrelation of those claims make it unlikely that Claim 13 can be resolved independently. 8 The parties shall meet and confer within the next 30 days, and on or before November 15, 9 2013, file a proposed schedule for merits briefing which addresses all the claims presented in the 10 federal petition. 11 12 IT IS SO ORDERED. 13 14 Dated: October 8, 2013 . /s/ Anthony W. Ishii . ANTHONY W. ISHII United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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