Dixon v. Yates

Filing 44

ORDER signed by Senior Judge James K. Singleton on 6/1/11 orderding petitioner to submit original affidavit, along with proof that it was timely filed to begin with, and; a memorandum regarding the effect the alleged threats had on his relationship w ith his counsel and how they affected counsels ability to adequately represent him. Dixon should also note when this conflict arose. Dixon should also brief the appropriate remedy, paying special attention to the holding in Pinholster. After reviewing Dixons filings, this Court will order Respondent to submit a reply if it is necessary and appropriate. (Meuleman, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

CLARENCE HENRY DIXON,
Case No. 2:09-cv-00513-JKS
Petitioner,
vs.
ORDER
JAMES A. YATES,
Respondent.
Petitioner, Clarence Dixon, a state petitioner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254. Dixon alleges, inter alia, that a complete
breakdown in communication between he and his attorney denied him the effective assistance of
counsel. Dixon argues that the breakdown lead to serious threats by his counsel, toward Dixon.
After reviewing the record, this Court observed that no state court ever addressed the nature and
extent of the alleged threats made by Dixon’s counsel. Accordingly, this Court ordered Dixon to
submit an affidavit no later than December 27, 2010, detailing precisely what he contends the
dispute with his counsel involved and what, if any, threats were made.1 The Respondent was to
respond to Dixon’s supplemental memorandum no later than January 31, 2011.
This Court never received a filing from Dixon and on March 24, 2011, entered a
Memorandum Decision denying Dixon’s claims in their entirety. On March 28, 2011, Dixon

1

Docket No. 36.
1

filed a Motion for Entry of Default,2 alleging that the Respondent had failed to reply to his
supplemental memorandum and claiming that he was entitled to judgment. However, as noted,
this Court, and apparently, the Respondent, never received a supplemental memorandum from
Dixon. Construing Dixon’s motion at Docket No. 39 liberally, this Court will treat the motion as
a Motion to Reconsider this Court’s Memorandum Decision, filed pursuant to Federal Rule of
Civil Procedure 59(e).3 Dixon will be given an opportunity to re-file his original affidavit, along
with proof that it was timely filed to begin with.4 In order to assist this Court in developing a full
and fair record, Dixon should also include a memorandum detailing what threats allegedly were
made, the effect the threats had on his relationship with his counsel, and how they affected
counsel’s ability to adequately represent him. Dixon should also note when this conflict arose.5
On April 4, 2011, the Supreme Court decided Cullen v. Pinholster, holding: “Review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.”6 This holding effects if and when a federal court sitting in a habeas case
can hold an evidentiary hearing. In Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) the Ninth
Circuit held that when the state court fails to investigate the nature and extent of an attorneyclient conflict, the appropriate remedy is to hold an evidentiary hearing to flesh out the facts– to

2

Docket No. 39.

3

Federal Rule of Civil Procedure 59(e) allows a litigant to file a motion to alter or
amend a judgment within 28 days after the entry of the judgment.
4

Such proof may include an affidavit detailing when he turned over his supplemental
brief to the prison officials, and would, ideally, include a copy of the prison’s mail log.
5

Two separate times before trial, Dixon asked to replace his counsel. The trial court
held Marsden hearings and denied each of Dixon’s request. After the denial of Dixon’s first two
Marsden motions on May 19, 2006, and June 29, Dixon’s original counsel conflicted out of the
case and he was provided with new counsel. On August 23, 2006, during his jury trial,
Petitioner voiced complaints about his new attorney’s performance. A Marsden hearing was held
and Dixon’s motion was denied. This Court must defer to the trial court’s conclusions that no
conflict existed as of these hearings.
6

Cullen v. Pinholster, 563 S.Ct. ----, 2011 WL 1225705, *8 (April 4, 2011).
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determine whether the conflict amounted to a constructive denial of counsel. However, because
Pinholster limits § 2254(d)(1) review to the record that was before the state court, it effectively
overrules Schell.7 The majority in Pinholster is silent regarding whether review is limited to the
state-court record when a petitioner’s inability to develop the facts supporting his claim was the
fault of the state court itself– the exact situation apparently alleged in this case.8 Although the
majority does not speak to this issue, the opinion could be construed to foreclose evidentiary
hearings, even when the state court prevents a defendant from developing facts to support a
claim. In her dissent, Justice Sotomayor raises this issue and assumes that this was not the
majority’s intent. It is unclear whether Justice Sotomayor’s supposition has the support of the
majority but it seems that common sense supports her view. In any event, if a significant
breakdown in the attorney client relation existed and the state court refused to allow Dixon to
develop the record on this matter, then Dixon is entitled to a remedy, i.e. this Court can either

7

In Pinholster, the majority noted that evidentiary hearings may only be held pursuant to
28 U.S.C.A. § 2254(e)(2), which reads:
(2) If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
Dixon appears unable to meet this standard for two reasons– Dixon has not alleged a single fact
that would allow this court to conclude that no reasonable factfinder would have found the
applicant guilty of the underlying offense, therefore he cannot meed the burden of §2254(e)(2),
and; the factual predicate for this claim had been discovered by Dixon, but was not properly
developed by the state courts. Dixon should address this problem.
8

Pinholster, 2011 WL 1225705 at 26 n.5 (J. Sotomayor, dissenting) (“I assume that the
majority does not intend to suggest that review is limited to the state-court record when a
petitioner's inability to develop the facts supporting his claim was the fault of the state court
itself.”).
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hold a hearing in federal court or consider sending it back to state court for a hearing. Dixon
should initially brief the appropriate remedy, paying special attention to the holding in
Pinholster.
After reviewing the docket, it appears that Dixon is in the process of appealing this
Court’s decision. This Court did not issue a Certificate of Appealability (“COA”) in this case
and as of the date of this order, the Ninth Circuit has not issued one. Thus, because the Ninth
Circuit has not taken jurisdiction over this case by issuing a COA and this Court is treating
Dixon’s motion at Docket No. 39 as a timely motion to reconsider, this Order is appropriate.
IT IS HEREBY ORDERED THAT no later than July 6, 2011, the Petitioner, Clarence
Dixon, shall submit the following:
•

His original affidavit, along with proof that it was timely filed to begin with, and;

•

A memorandum regarding the effect the alleged threats had on his relationship
with his counsel and how they affected counsel’s ability to adequately represent
him. Dixon should also note when this conflict arose. Dixon should also brief the
appropriate remedy, paying special attention to the holding in Pinholster.

After reviewing Dixon’s filings, this Court will order Respondent to submit a reply if it is
necessary and appropriate.
Dated: June 1, 2011.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

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