Dykes v. Ayers

Filing 46

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO STAY PROCEEDINGS PENDING A DECISION ON CLAIM 7 IN ASHMUS V. CHAPPEL 43 . (Illston, Susan) (Filed on 12/16/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ERNEST EDWARD DYKES,

Case No. 11-cv-04454-SI

Petitioner,
8
v.
9
10

RON DAVIS, Warden of California State
Prison at San Quentin,

11

Respondent.

ORDER GRANTING IN PART AND
DENYING IN PART PETITIONER'S
MOTION TO STAY PROCEEDINGS
PENDING A DECISION ON CLAIM 7
IN ASHMUS V. CHAPPEL

United States District Court
Northern District of California

Re: Dkt. No. 43
12
13
INTRODUCTION
14

Petitioner, a condemned inmate at California’s San Quentin State Prison, has filed a

15
Motion To Stay Proceedings Pending A Decision On Claim Seven in Ashmus v. Chappell. (ECF
16
17

Doc. No 43) Respondent opposes petitioner’s motion. (ECF Doc. No. 44) For the reasons stated
below, petitioner’s motion is GRANTED IN PART AND DENIED IN PART.

18
19
BACKGROUND
20
On August 2, 1995, petitioner was convicted in Alameda County of first degree murder,
21
attempted murder and robbery, and was sentenced to death. The Supreme Court of California
22
affirmed the conviction and sentence on June 15, 2009. People v. Dykes, 46 Cal. 4th 731 (2009).
23
Petitioner filed a state habeas petition on July 6, 2004. The Supreme Court of California denied
24
the state petition on August 31, 2011.
25
On December 21, 2012, petitioner filed a federal habeas petition. (ECF Doc. No. 13)
26

Petitioner’s petition contains only penalty-phase claims.

Respondent filed an answer on

27
December 13, 2013. (ECF Doc. No. 18) Proceedings were subsequently stayed pending the
28

1

resolution of a challenge to California’s death penalty scheme filed in Jones v. Chappell, 31

2

F.Supp.3d 1050 (C.D. Cal. July 16, 2014). The stay was lifted on August 16, 2016, after the Ninth

3

Circuit rejected Jones’ challenge. See Jones v. Davis, 806 F.3d 538 (9th Cir. 2015). The instant

4

briefing followed.

5
6
7

DISCUSSION
Petitioner requests to stay proceedings pending a final resolution of claim 7 in Ashmus v.
Petitioner asserts that Ashmus’ claim 7 shares

Chappell, C-93-594 TEH (N.D. Cal. 1993).

9

significant similarities with claim 1 of his petition and is potentially dispositive of petitioner’s

10

case. In claim 1, petitioner alleges that California’s death penalty scheme is flawed in numerous

11
United States District Court
Northern District of California

8

respects. First, he contends that the death penalty is disproportionate to his culpability. (ECF

12

Doc. No.13 at 84-86) Second, petitioner contends that California’s 1978 death penalty statute

13

lacks inter-case proportionality review in violation of the Eighth Amendment, fails to

14

meaningfully narrow the pool of death-eligible defendants and allows for arbitrary sentencing.

15

(ECF Doc. No. 13 at 86-93) Ashmus, in turn, alleges in claim 7 of his petition that California’s

16

death penalty statute fails to narrow the class of offenders eligible for the death penalty and results

17

in the imposition of death in an arbitrary and capricious manner. (ECF Doc. No. 43, Exhibit A at

18

80-101) Ashmus is currently exhausting claim 7 in state court.

19
20

Respondent contends that a stay is not warranted because petitioner’s claim 1 and Ashmus’
claim 7 are dissimilar, and that claim 1 lacks merit anyway.

21

A review of the record confirms that petitioner’s claim1 and Ashmus’ claim 7 do indeed

22

share significant similarities. Both allege that California’s death penalty statute is impermissibly

23

broad, although petitioner adds the allegation that California’s death penalty statute is

24

unconstitutional as applied to him. As noted by petitioner, the district court in Ashmus allowed

25

discovery and convened a multi-day evidentiary hearing to receive evidence and testimony

26

concerning claim 7. In the interest of efficiency, the Court will defer ruling on claim 1 until after

27
28
2

1

Ashmus’ claim 7 is decided. 1

2

The Court need not, however, entirely stay the proceedings as the parties may litigate

3

petitioner’s remaining claims. Accordingly, the Court directs petitioner to file a traverse within 60

4

days of the date of this Order. Petitioner fails to advance sufficient reason for deferring the filing

5

of a traverse. (See ECF Doc. No. 43 at 7)

6
CONCLUSION

7

For the above-mentioned reasons, petitioner’s motion is GRANTED IN PART and

9

DENIED IN PART. Resolution of petitioner’s claim 1 is deferred pending resolution of claim 7 in

10

Ashmus. Petitioner shall file a traverse addressing his remaining claims within 60 days of the date

11
United States District Court
Northern District of California

8

of this Order.

12
13
14

IT IS SO ORDERED.
Dated: December 16, 2016
______________________________________
SUSAN ILLSTON
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Respondent alleges that relief on claim 1 is foreclosed under Pulley v. Harris, 465 U.S.
37, 50-51 (1984) (intercase proportionality review is not constitutionally required). As noted, the
Court defers addressing the merits of claim 1 until after Ashmus’ claim 7 is decided.
3