Danks v. Martel

Filing 41

ORDER DISCHARGING Order to Show Cause Regarding Dismissal of Claims 31 Through 35; Resolving Exhaustion Dispute; and Holding Claims 31 Through 35 in Abeyance, signed by District Judge Lawrence J. O'Neill on 11/9/2011. STAYED FLAG SET. (Jessen, A)

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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 DISCHARGING ORDER TO
SHOW CAUSE REGARDING DISMISSAL
OF CLAIMS 31 THROUGH 35;
RESOLVING EXHAUSTION DISPUTE;
AND HOLDING CLAIMS 31 THROUGH 35
IN ABEYANCE

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On October 14, 2011 the Court entered an order holding federal proceedings in abeyance as to

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Claims 1 through 30 and 37, dismissing Claim 36 as premature, and directing Petitioner Joseph Martin

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Danks (“Danks”) to show cause why Claims 31 through 35 should not be dismissed as unexhausted and

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barred by the statute of limitations. Danks timely filed his return to the order to show cause on October

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21, 2011. Respondent Michael Martel, as Acting Warden of San Quentin State Prison, (the “Warden”)

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filed a response to Danks’ return on October 25, 2011.

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In their respective submissions, the parties agree that the factual bases for Claims 31 through 35

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were previously exhausted during direct appeal proceedings before the California Supreme Court. The

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Warden maintained, however that not all the legal bases for Claims 31 through 35 were exhausted and

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that the unexhausted legal bases should be dismissed as barred by the statute of limitations. The Court

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then directed Danks to file a reply to the Warden’s response by November 8, 2011. Danks timely

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complied, arguing that the statute of limitations is not a bar to the additional legal bases, and separately

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that, with two exceptions, the legal bases do not render Claims 31 through 35 unexhausted . The

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exceptions are equal protection violations alleged in Claims 31 and 33.
11dp223.ODischOSC.Dnk.wpd

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After reviewing the materials submitted by the parties as well as the pleadings and records on

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file in this matter, the Court finds the state appellate proceedings fairly presented Danks’ federal claims,

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except for the equal protection allegations, so as to provide the state court an “opportunity to pass upon

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and correct the alleged violations of [Danks’] federal rights.” See Duncan v. Henry, 513 U.S. 364, 365

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(1995), quoting Picard v. Conner, 404 U.S. 270, 275 (1971) (internal quotation marks omitted).

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GOOD CAUSE APPEARING THEREFOR, the October 14, 2011 order to show cause IS

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DISCHARGED. Claims 31 through 35 SHALL BE HELD IN ABEYANCE with Claims 1 through 30

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and 37 during pendency of state exhaustion proceedings. The allegations that Danks’ equal protection

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rights under the Fourteenth Amendment were violated, as alleged in Claims 31 and 33 of the federal

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petition ARE UNEXHAUSTED. The Clerk of the Court is directed to flag this case as stayed until

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further directed by the Court.

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IT IS SO ORDERED.

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Dated:

November 9, 2011
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge

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11dp223.ODischOSC.Dnk.wpd

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