Johnson v. Brown, et al

Filing 226

ORDER re: Supplemental Briefing. Signed by Judge Thelton E. Henderson on 03/11/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 3/15/2011)

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Johnson v. Brown, et al Doc. 226 1 2 3 4 5 6 7 8 9 10 LAVERNE JOHNSON, NO. C 95-0305 TEH Petitioner, v. MICHAEL MARTEL, Acting Warden of California State Prison at San Quentin, Respondent. ORDER RE SUPPLEMENTAL BRIEFING DEATH PENALTY CASE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 On December 17, 1987, petitioner was convicted by a San Mateo County jury of two counts of first degree murder, Cal. Penal Code 187, and one count of arson, Cal. Penal Code 451(b). The jury also found true the multiple murder special circumstance allegation, Cal. Penal Code 22 190.2(a)(3). The same jury fixed the penalty at death on February 5, 1988. On October 18, 1993, 23 petitioner's conviction and sentence were affirmed on direct appeal. See People v. Johnson, 6 24 Cal.4th 1 (1993). 25 26 27 28 1 Petitioner filed a habeas petition on April 22, 1997.1 On that same day, he also filed his 2 second state habeas petition in the California Supreme Court. On May 2, 1997, respondent filed a 3 motion to dismiss the federal petition on the ground that it contained unexhausted claims. On 4 November 25, 1997, the California Supreme Court denied the second state habeas petition. 5 Petitioner subsequently filed an amended federal petition in which he incorporated claims from the 6 7 8 second state habeas petition. Respondent originally filed an Answer, a Memorandum of Points and Authorities in Support 9 of Answer and a Motion for Summary Judgment on October 22, 1999. The Motion was denied by 10 the court as premature. After various matters were resolved, petitioner filed a Traverse; respondent United States District Court 11 subsequently filed a Supplemental Answer, which included briefing on procedural issues and on the For the Northern District of California 12 merits of petitioner's claims. Petitioner filed a responsive Memorandum of Points and Authorities in 13 Support of Non-Hearing Claims2; respondent subsequently filed, per court request, a supplemental 14 15 and untimely filing. Most recently, this court issued an Order denying Claims F, G, H, I, J, K, L brief. This court has previously issued an Order resolving respondent's claims of procedural default 16 17 18 and W. Before resolving the remaining claims, the court requests supplemental briefing from the 3 19 parties. This briefing should be limited to the impact, if any, of recent caselaw regarding the 20 remaining claims in petitioner's amended federal petition. The court also orders the parties to 21 22 23 24 25 26 27 In Woodford v. Garceau, the United States Supreme Court held that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply to all cases in which a petition for a writ of habeas corpus was filed after April 24, 1996, the effective date of AEDPA. 538 U.S. 202, 206-08 (2003). In light of Garceau, AEDPA applies to petitioner's habeas petition, which was filed on April 22, 1997. Petitioner's Memorandum addressed the merits of all of his claims except Claim M, for which he is seeking an evidentiary hearing. 3 2 1 By this, the court means relevant caselaw filed since the parties briefed the remaining 28 claims. No additional briefing on already decided claims will be entertained at this juncture. 2 1 address the impact on the standard of review, if any, of Harrington v. Richter, 131 S. Ct. 770 2 (2011). 3 4 5 Petitioner should file any reply within fifteen days of respondent's brief. Petitioner should file his supplemental brief within sixty days of the date of this order. Respondent should file a response to petitioner's brief within thirty days of petitioner's brief. 6 7 8 9 10 DATED: 03/11/2011 THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE IT IS SO ORDERED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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