Danks v. Martel

Filing 25

ORDER Following Phase II Case Management Conference, signed by District Judge Lawrence J. O'Neill on 5/6/2011. Hearing Date: May 4, 2011, Time: 8:30 a.m., Courtroom Four.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH MARTIN DANKS,

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Petitioner,
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vs.
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MICHAEL MARTEL, as Acting Warden of San )
Quentin State Prison,
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Respondent.
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_______________________________________ )

Case No. 1:11-cv-00223 LJO
DEATH PENALTY CASE
ORDER FOLLOWING PHASE II CASE
MANAGEMENT CONFERENCE
HEARING DATE: May 4, 2011
TIME:
8:30 a.m.
COURTROOM FOUR

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This matter came on for a Phase II Case Management Conference (“CMC”) May 4, 2011 at 8:30

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a.m. in the above referenced Court, the Honorable Lawrence J. O’Neill presiding. Petitioner Joseph

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Martin Danks (“Danks”) was represented by appointed counsel from the Habeas Corpus Resource

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Center (“HCRC”), Gary Sowards, Margo Hunter, and Kevin Bringuel. Respondent Michael Martel, as

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Acting Warden of San Quentin State Prison (the “Warden”), was represented by Deputy Attorney

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General Leanne LeMon. All counsel appeared telephonically.

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Since the March 17, 2011 Phase I CMC, the Warden timely filed an index of lodged state records

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on April 8, 2011. Fourteen volumes of state court records, including extensive exhibits presented to the

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California Supreme Court during state habeas proceedings, were lodged on the same day. Four days

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prior to that, the Supreme Court issued Cullen v. Pinholster, 131 S. Ct. 1388 (2011), a decision which

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will have an impact on granting federal court evidentiary hearings and calls into question the propriety

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of pre-petition claims development investigation. Specifically, Pinholster holds that an evaluation of 28

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U.S.C. § 2254(d)(1) state court decision reasonableness “is limited to the record that was before the state

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court that adjudicated the claim on the merits. Id. at 1398. Prompted by Pinholster, the Court issued

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an order revising the Phase I budget stating as follows:

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In the case of legally exhausted claims for which a factual basis was presented in the California

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Supreme Court, pre-petition fact development will be precluded, unless the factual basis

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presented in state court is shown to have been incomplete so that additional fact development

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would lead to the formation of a new, unexhausted claim.

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2.

For unexhausted claims, the authorization of funds for pre-petition fact development will be

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determined by the following factors in addition to guiding principles outlined in the Ninth Circuit

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Judicial Council CJA Capital Habeas Costs Policy:

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a.

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Efforts previously undertaken to develop the evidence sought and the reason these efforts
were unsuccessful.

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b.

A description of the evidence sought to be uncovered.

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c.

Reasonable assurance by counsel that the investigation, expert service, or other ancillary

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assistance will be efficacious in uncovering the evidence sought.

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d.

Whether the evidence sought existed and was reasonably accessible at the time of trial.

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e.

The connection of the evidence sought to a prospective claim that will be raised in the

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federal petition.

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Applying these guidelines will allow the development of unexhausted claims where petitioners

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can establish diligence, efficacy, and claim cognizability. This approach also will facilitate any further

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(d)(1) determination of state decision reasonableness based on the same record in federal court as in state

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court prior to granting further evidentiary development. The Court is mindful that the development of

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evidentiary facts does not necessarily render existing claims unexhausted. See Vasquez v. Hillery, 474

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U.S. 254, 257-58-260 (1986) (rejecting challenge to new evidence because it did not fundamentally alter

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the legal claim the state courts previously considered).

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Under this budget revision order, Phase I investigation and claims development was suspended

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as of the date of the order, with further explanation and justification to be provided in the proposed

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Phase II budget and discussed at the Phase II CMC. In the Phase II budget materials, as well as at the

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Phase II CMC, Mr. Sowards has confirmed publicly that the pre-petition investigation and factual
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development contemplated on behalf of Danks is expected to augment existing, legally exhausted claims

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only, rather than give rise to new, unexhausted claims. Referencing the Vasquez v. Hillery opinion,

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during the CMC he expressed his good faith belief that the additional fact development investigation will

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not render the existing claims unexhausted.

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Prior to the CMC, the HCRC attorneys, on behalf of Danks, conferred telephonically with Ms.

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LeMon, on behalf of the Warden, to work out a schedule for Phase II litigation tasks. All parties

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recognize that the major work to be completed in Phase II is Danks’ preparation and presentation of a

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timely federal petition as well as to resolve all exhaustion and statute of limitations issues. This includes

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the filing of an answer by the Warden that responds to the allegations of the petition and frames disputed

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issues consistent with Rule 5(b) of the Rules Governing § 2254 Cases. In light of the Phase I budget

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revision order, Danks also requested the opportunity to brief the impact of the Pinholster opinion on the

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propriety of pre-petition investigation of legally exhausted claims.

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Expanding further on the purpose and scope of the proposed Pinholster briefing at the CMC,

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Messrs. Sowards and Bringuel noted the complexity of the issues Pinholster raises, including the

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appropriate application of § 2254(d)(1) and (2), Harrington v. Richter, 131 S. Ct. 770 (2011), Landrigan

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v. Schriro, 550 U.S. 465 (2007), Wood v. Allen, 130 S.Ct. 841 (2010), the California Constitution, as

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well as other California authorities describing controlling principles of California state habeas corpus

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practice. Danks believes his Pinholster brief will be comprehensive in explaining the inter-relation of

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various controlling precedents, statutes, and conventions. The Court is under the impression the

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California Attorney General’s Office is taking the position that Pinholster precludes federal district

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courts from considering any evidence beyond what was presented in state court in proceedings governed

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by § 2254(d)(1), and therefore that evidentiary hearings will be barred in post-Pinholster federal habeas

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litigation. While the Court has not yet received any definitive briefing on the issue from the Attorney

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General’s Office, the issue framed, as presently understood, relates to a petitioner’s entitlement to an

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evidentiary hearing, not pre-petition investigation. The authorities referenced by Danks’ attorneys also

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pertain to ascertaining the meaning of a colorable claim, a prima facie case, an unreasonable application

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of federal law under § 2254(d)(1), an unreasonable determination of facts under § 2254(d)(2) as well as

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the inter-relation between § 2254(d)(2) and the presumption of correctness of state factual findings under

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§ 2254(e)(1). All of these issues exceed the scope of litigation tasks to be completed in Phase II.

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Since Danks, through his attorneys, concede that he intends to present only exhausted claims in

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his anticipated federal petition, the Court directs the parties to defer their Pinholster briefing efforts until

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the case is at issue, with the legal and factual issues fully framed and all exhaustion as well as statute

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of limitations issues resolved. Further proceedings to discuss a budget and case management plan for

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Danks’ case were conducted confidentially. A separate order will be issued and filed under seal

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establishing a budget for Phase II of the litigation.

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GOOD CAUSE APPEARING THEREFOR, the parties will adhere to the following schedule:
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presented without points and authorities.

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Danks shall file his federal petition no later than September 15, 2011. The petition shall be

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Within 60 days from the filing of the petition (November 14, 2011 if the petition is filed on

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September 15, 2011), the Warden shall file his answer in conformance with Rule 5(b) of the

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Rules Governing § 2254 Cases. The answer shall address and respond to the allegations of the

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petition so as to frame the issues in dispute and raise all substantive and procedural affirmative

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defenses. The answer also shall be presented without points and authorities.

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3.

Within 45 days from the filing of the answer (December 29, 2011 if the answer is filed on

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November 14, 2011), the parties will confer and file a joint statement setting forth their

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respective positions regarding Danks’ compliance with the statute of limitations and the

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exhaustion status of the petition. The matter will stand submitted for the Court to settle the

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parties’ disagreements (if any), at which time the Court will take such further action as is

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necessary to advance the case. When the Court issues the order resolving exhaustion issues,

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Phase II will terminate and Phase III will commence. Under this schedule, Phase II should be

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completed by January 15, 2012. A Phase III CMC thereafter will be scheduled by the Court.

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IT IS SO ORDERED.

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Dated:

May 6, 2011
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge

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