Dykes v. Ayers

Filing 95

ORDER (Illston, Susan) (Filed on 5/21/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNEST EDWARD DYKES,
Petitioner,

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Case No. 11-cv-04454-SI
ORDER

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

DEATH PENALTY CASE

United States District Court
Northern District of California

Respondent.
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Before the Court is Petitioner’s “Motion to Withdraw Claims Two Through Eight of the

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Petition; Notice of Exception to Denial of Discovery; Notice of Request for Judgment on Claim
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One; [and] Request for Certificate of Appealability” (Docket No. 92). On February 20, 2020, the
Court entered an Order (Docket No. 90) denying Petitioner’s First Motion for Discovery. The Court

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next entered an Order (Docket No. 91) directing the parties to jointly confer and, on or before April
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17, 2020, propose a schedule for further litigation in this matter. In lieu of the conference and
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scheduling proposal directed by the Court’s Order, Petitioner has filed the instant motion in which

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he, in pertinent part, requests that the Court withdraw, without prejudice, claims two through eight
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of his habeas petition, enter judgment against him on claim one of the petition, and, further, grant
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him a certificate of appealability so that he may appeal this Court’s denial of his discovery motion.

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Other than to assert that claims two through eight must be withdrawn with prejudice to their renewal
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in order to obtain a final, appealable judgment, Respondent takes no position on Petitioner’s motion

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or his request for a certificate of appealability. See Docket No. 93 at 2.
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Although Petitioner notes his “respectful and ongoing exception” to the Court’s Order

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denying his motion for discovery, see Docket No. 92 at 1, and requests a certificate of appealability
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(“COA”) related to such Order, nowhere in his motion does Petitioner address the standard

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applicable to such requests or explain why he is entitled to a COA in this instance. The Court may

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issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2). Hence, in order to obtain a COA, Petitioner must demonstrate that

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“reasonable jurists could debate whether . . . the petition should have been resolved in a different

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manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’”

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Slack v. McDaniel, 529 U.S. 483, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

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(1983)). Petitioner leaves it to the final sentence of his reply to attempt any effort at satisfying this

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requisite showing. He argues, without citation to any authority, as follows: “In this first capital

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habeas petition, given the gravity of the matter and the details presented in support of his motion for

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United States District Court
Northern District of California

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discovery, it is respectfully urged that reasonable jurists could disagree with this Honorable Court’s

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order denying Petitioner’s motion for discovery.” Docket No. 94 at 3. With respect to the Court’s

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denial of discovery, this summary assertion is insufficient to obtain a COA.

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In his Declaration in support of the instant motion, Petitioner’s counsel states that, “[i]f the

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Court wishes briefing to support [Petitioner’s request for a COA], it will be [his] pleasure to provide

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it.” Docket No. 92 at 5. He repeats this offer in his Declaration submitted with Petitioner’s reply.

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See Docket No. 94 at 6. In view of the scant argument offered to this point, the Court finds such

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briefing necessary to fully consider Petitioner’s request. Accordingly, Petitioner shall submit a

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brief in support of his request for a COA on or before June 15, 2020. Respondent shall file

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any response brief on or before June 25, 2020. Petitioner may file a reply brief on or before

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July 2, 2020.

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IT IS SO ORDERED.
Dated: May 21, 2020
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SUSAN ILLSTON
United States District Judge

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