Carpenter v. Brown, et al

Filing 184

ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION. Signed by Judge Maxine M. Chesney on 12/11/15. (mmcalc, COURT STAFF) (Filed on 12/11/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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DAVID J. CARPENTER,

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NO. C 00-3706 MMC

Petitioner,
ORDER GRANTING
PETITIONER’S MOTION FOR
RECONSIDERATION

v.
RON DAVIS, Acting Warden of
California State Prison at San Quentin,

DEATH PENALTY CASE
Respondent.

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Pursuant to Civil Local Rule 7-9, petitioner has filed a motion for reconsideration of the

20 Court’s Order of May 8, 2015 (“May 8 Order”), dismissing various claims due to procedural default.
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In support of his motion, petitioner argues that a subsequent change of law compels the Court to

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reconsider portions of its May 8 Order.

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In said order, the Court relied on Walker v. Martin, 131 S.Ct 1120, 1128-31 (2011), as well
as various district court cases, to support its holding that California’s Dixon bar was adequate to

26 foreclose federal review of certain claims. See In re Dixon, 41 Cal. 2d 756 (1953). More recently,
27 however, the Ninth Circuit concluded that Martin does not establish the adequacy of the Dixon bar.
28 See Lee v. Jacquez, 788 F. 3d 1124, 1133-34 (9th Cir. 2015).

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Respondent challenges the Ninth Circuit’s reasoning in Lee but implicitly acknowledges, as

2 he must, that Lee prevents this Court from holding petitioner’s claims are defaulted pursuant to the
3 Dixon bar. Although the Attorney General may file a petition for a writ of certiorari, seeking
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review of Lee (Johnson v. Lee, No. 15A484 (U.S. Nov. 5, 2015)), published opinions of the Ninth

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Circuit are binding on district courts irrespective of a potential rehearing or review. See, e.g.,

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Wedbush et. al., Inc. v. SEC, 714 F. 2d 923, 924 (9th Cir. 1983).
Accordingly, and for good cause shown, petitioner’s motion for reconsideration is

9 GRANTED. The portion of the Court’s May 8 Order dismissing petitioner’s claims as defaulted

11 Court’s earlier order addressing the same issue (see Doc. No. 78 at 10-12) is hereby REINSTATED.
For the Northern District of California

United States District Court

10 pursuant to the Dixon bar (see Doc. No. 175 at 4-6) is hereby VACATED, and the portion of the

12 Specifically, Claims 5, 11, and 32 will be decided on the merits.
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The remaining claims subject to the Dixon bar have either been rejected on the merits
(Claims 15C, 27, 45A, 45B, 45F, 45I, 45J and 45M), or have been barred by other independent and

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adequate state procedural rules (Claims 15B, 17, 22, 23, and 25).

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IT IS SO ORDERED.

18 DATED: December 11, 2015
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MAXINE M. CHESNEY
UNITED STATES DISTRICT JUDGE

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