Clifton Perry v. Acting Warden Michael Martel

Filing 21

Case Management ORDER Regarding Pleadings, signed by Chief Judge Anthony W. Ishii on 11/23/11. (Verduzco, M)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11
12
13

CLIFTON PERRY,

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

Case No. 1:11-cv-01367 AWI
DEATH PENALTY CASE
CASE MANAGEMENT ORDER
REGARDING PLEADINGS

14
15

Prior to September 2011, the Guide to Case Management and Budgeting in Capital Habeas Cases

16

for the Fresno Division of the Eastern District of California (the “Attorney Guide”) specified that

17

petitions should be filed without points and authorities. Answers also were to be filed without points

18

and authorities. Legal briefing under the prior Attorney Guide was presented in a later stage of the

19

proceedings. In September 2011, the Court revised the Attorney Guide so as to require petitioners to

20

present their petitions with legal points and authorities. A comprehensive answer, including points and

21

authorities, as well as a traverse also were determined to be appropriate in the September 2011 Attorney

22

Guide. Because this revised procedure has not been utilized previously, the Court raised the matter of

23

pleading presentation at the Phase I Case Management Conference in the within case. Petitioner Clifton

24

Perry (“Perry”) requested the option of filing the federal petition under the prior procedure, that is,

25

without points and authorities. In order to inform the Court’s decision about whether to proceed under

26

the prior or revised Attorney Guide procedure, further input was invited from Respondent Michael

27

Martel, as Acting Warden of California State Prison at San Quentin (the “Warden”). The Warden timely

28

filed his statement on November 18, 2011.
11dp1367.OReCaseMgmt4Pleadings.Per.wpd

1

1

Rule 2 of the Rules Governing § 2254 Cases specifies that a petition must:

2

1.

Specify all the grounds for relief available to the petitioner;

3

2.

State the facts supporting each ground;

4

3.

State the relief requested;

5

4.

Be printed, typewritten, or legibly handwritten; and

6

5.

Be signed under penalty of perjury by the petitioner or by a person authorized to

7

sign it for the petitioner under 28 U.S.C. § 2242.

8

As the text of Rule 2 suggestions, habeas corpus petitions, generally, are factually extensive. Capital

9

habeas petitions invariably are even more complex and factually intense.

10

The grounds for relief in habeas corpus petitions, including capital petitions, however, are basic.

11

All § 2254 petitions allege numerous and overlapping violations under the Fifth, Sixth, Eighth, and

12

Fourteenth Amendments to the United States Constitution. Since the vast majority of meritorious claims

13

presented in federal habeas corpus petitions have been exhausted in state court, the same numerous and

14

overlapping violations under the Fifth, Sixth, Eighth, and Fourteenth Amendments have been presented

15

in state court. It is the Court’s experience that because capital habeas corpus petitions are presented with

16

the assistance of appointed counsel, they are presented in compliance with Rule 2.

17

In the past, when capital habeas petitioners were asked to file their petitions without

18

accompanying points and authorities, the petitions nonetheless did state, in a comprehensive manner,

19

the legal grounds for the claims, as Rule 2 requires. When in later stages of the litigation petitioners

20

filed formal points and authorities, those briefs were repetitive of the petitions and added little legal

21

authority to the legal grounds already presented. It was for this reason the Court made a case

22

management change in the procedure in the September 2011 Attorney Guide.

23

As the Warden notes in his statement, Rule 5 of the Rules Governing § 2254 Cases requires him

24

to file an answer which addresses the allegations in the petition and frames the issues. See Williams v.

25

Calderon, 52 F.3d 1465, 1483 (9th Cir. 1995). In order to meet that requirement, the answer necessarily

26

also must be factually intensive to respond to the factual allegations in the petition. The Warden

27

disputes the notion that his anticipated answer in this case must address the factual allegations in the

28

petition in a comprehensive manner.
11dp1367.OReCaseMgmt4Pleadings.Per.wpd

2

1

The Warden’s view follows from his understanding of the deference federal courts owe state

2

court decisions under § 2254(d) and the holding in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388

3

(2011). He maintains that pleading requirements for habeas corpus cases are more circumscribed than

4

regular civil cases because a federal habeas petition necessarily is preceded by a conviction in the trial

5

court, affirmance of that judgment on direct appeal, and state post-conviction review. He claims

6

AEDPA limits the need to frame and narrow the facts presented in federal petitions due to having shifted

7

the focus in habeas corpus from resolution of factual issues to a threshold determination of a legal

8

question regarding the reasonableness of the adverse state decisions under § 2254(d). Relying on

9

Pinholster, he argues that the existence or non-existence of factual disputes is irrelevant to this threshold

10

analysis because new facts presented in federal court cannot be considered. His bottom line is that there

11

is no need at the pleading stage for the parties to identify potential areas of factual dispute for resolution.

12

It is for this reason the Warden requests the Court to adhere to the revised procedure in the

13

Attorney Guide, that is, requiring Perry to present his petition with points and authorities so that the

14

answer also will consist of points and authorities. There is merit to the Warden’s request, but not for

15

the reasons cited or in the manner suggested.

16

The Court has considered the authorities cited by the Warden in his statement. While they

17

provide ample support for the proposition that district courts may establish case management procedures

18

which are tried and true, or alternatively, on a case-by-case basis, they do not stand for the proposition

19

that factual issues pleaded in federal habeas corpus petitions need not be framed, narrowed, or resolved

20

in advance of a court’s § 2254(d) analysis. As the Warden states, Williams v. Birkett, 697 F.Supp. 2d

21

716, 723, n. 4 (E.D. Mich. 2010), holds that the answer to a habeas petition “should respond in an

22

appropriate manner to factual allegations contained in the petition and should set forth legal arguments

23

in support of respondent’s position, both the reasons why the petition should be dismissed and the

24

reasons why the petition should be denied on the merits.” The beginning of that same footnote also

25

states: “An answer to a habeas petition is not unlike an answer to a civil complaint. It must respond to

26

the allegations of the petition.” Id. In the next cited case, Ebert v. Clark, 320 F.Supp. 2d 902 (D. Neb.

27

2004), the petitioner challenged an order allowing the respondent to file a limited response raising

28

procedural default issues prior to addressing the merits. The court determined this was not an abuse of
11dp1367.OReCaseMgmt4Pleadings.Per.wpd

3

1

discretion. Id. at 904, n. 4. The Warden then cites Ukawabuto v. Morton, 997 F. Supp. 605 (D. N.J.

2

1998), in which the court established a case management procedure just the opposite of that in Ebert v.

3

Clark. In Ukawabuto, after the court dismissed the respondent’s motion to dismiss the petition for

4

failure to comply with the one-year AEDPA statute of limitations, the respondent filed a second motion

5

to dismiss because the petition presented both exhausted and unexhausted claims. The court dismissed

6

the second motion as well, explaining that the respondent could assert lack of exhaustion in his answer

7

as an affirmative defense. The court refused to permit the respondent to file piecemeal motions to

8

dismiss. Id. at 607. Rather it determined it would address the merits. Once the petition was answered,

9

no further motions were required. The court would simply decide the case. Id. at 608.

10

Nor is Pinholster supportive of the Warden’s proposition that factual issues need not be resolved.

11

While it is indisputable that Pinholster limits the introduction of new facts not previously presented in

12

state court prior to the federal court’s analysis of state court reasonableness under § 2254(d), that holding

13

in no way suggests that facts previously presented to state court need not be analyzed in federal court.

14

As the Michigan and New Jersey district courts decided in Williams, 320 F.Supp. 2d 902, and

15

Ukawabuto, 997 F. Supp. 605, the respondents need to respond to factual allegations in the petition, on

16

the merits. It is the framing of the factual issues in dispute that will inform this Court’s § 2254(d)

17

analysis of the reasonableness of the state court decisions adverse to Perry. The Warden must respond

18

to the factual allegations in a detailed manner to enable the Court to determine what facts were before

19

the California Supreme Court and how the state court decided the claims predicated on those facts. The

20

existence or non-existence of factual disputes is key to the § 2254(d) analysis.

21

After considering the past practices of petitioners in presenting petitions on capital habeas corpus,

22

the records incidental to on the present case, and the Warden’s statement, the Court orders as follows:

23

1.

24
25

Perry shall file his federal petition within the federal statute of limitations, up to
and including July 27, 2012.

2.

26

The petition shall be comprehensive and include all legal grounds for the claims
pleaded.

27

3.

Legal points and authorities shall be included in the petition.

28

4.

The Warden’s answer shall be filed with points and authorities as well.

11dp1367.OReCaseMgmt4Pleadings.Per.wpd

4

1

5.

2

In presenting his answer, the Warden shall frame the factual issues and address
the merits of the claims pleaded in the petition.

3

6.

General denials of the factual allegations will not be acceptable.

4

7.

In addition, the Warden shall allege all procedural affirmative defenses, including

5

procedural default, non-exhaustion, failure to comply with the statute of

6

limitations, and the non-retroactivity bar.

7
8
9

IT IS SO ORDERED.
Dated:

November 23, 2011
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11dp1367.OReCaseMgmt4Pleadings.Per.wpd

5