Davis v. Chappell

Filing 37

ORDER - Joint Stipulation 35 Concerning Litigation Related to the Mixed Federal Habeas Petition. Signed by Judge Edward M. Chen on 3/5/2015. (emcsec, COURT STAFF) (Filed on 3/5/2015)

1
2
3
4
5
6
7

KAMALA D. HARRIS
Attorney General of California
RONALD S. MATTHIAS
Senior Assistant Attorney General
GLENN R. PRUDEN
Supervising Deputy Attorney General
State Bar No. 195089
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Respondent

8
9

RENE L. VALLADARES
Federal Public Defender
Nevada Bar No. 11479
MICHAEL PESCETTA
Assistant Federal Public Defender
California Bar No. 88054
[e-mail]
HEATHER FRALEY
Assistant Federal Public Defender
Texas Bar No. 24050621
[e-mail]
411 E. Bonneville Ave., Ste. 250
Las Vegas, Nevada 89101
Tel: [phone]
Fax: [phone]
Attorneys for Petitioner

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12
13
14

RICHARD ALLEN DAVIS,

15
v.

16
17
18

CV13-00408 EMC
Petitioner, JOINT STIPULATION AND
[PROPOSED] ORDER CONCERNING
LITIGATION RELATED TO THE
MIXED FEDERAL HABEAS PETITION

RON DAVIS, Acting Warden, San Quentin
State Prison,

19

Respondent.

20
21

On February 19, 2015, counsel for the parties met and conferred telephonically regarding

22

the exhaustion status of the claims in the amended finalized habeas petition filed on January 29,

23

2015. See Habeas L. R. 2254-29(b). The results of the meet and confer are as follows:

24

1. Petitioner further amends the amended finalized petition as follows:

25 ///
26 ///
27 ///
28

1
Joint Stip. And Proposed Order Concerning Litigation Related to The Mixed Federal Habeas Petition
Davis v. Davis - (CV13-00408 EMC)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

a. The heading for Claim Twenty at p. 351 of Doc. 34 shall be changed to:
DAVIS’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A RELIABLE SENTENCE WERE
VIOLATED BECAUSE THE TRIAL COURT COMMITTED
PREJUDICIAL ERROR BY ADMITTING OTHER-CRIMES
EVIDENCE AT THE GUILT PHASE TO PROVE INTENT,
MOTIVE, AND COMMON SCHEME TO COMMIT
BURGLARY AND ATTEMPTED LEWD ACT UPON A
CHILD.
b. The heading for Claim Twenty-Two at p. 375 of Doc. 34 shall be changed to:
DAVIS’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A RELIABLE SENTENCE WERE
VIOLATED BECAUSE THE TRIAL COURT
ERRONEOUSLY GRANTED THE PROSECUTION’S
MOTION TO VIEW THE “CRIME SCENE” WHEN THE
PROBATIVE VALUE OF SUCH A VIEWING WAS FAR
OUTWEIGHED BY THE PREJUDICE AND FURTHER
RENDERED THE TRIAL PROCEEDING
FUNDAMENTALLY UNFAIR AND UNRELIABLE.
c. The heading for Claim Twenty-Four at p. 386 of Doc. 34 shall be changed to:
DAVIS’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A RELIABLE SENTENCE WERE
VIOLATED BECAUSE THE TRIAL COURT COMMITTED
PREJUDICIAL ERROR BY ADMITTING HIGHLY
INFLAMMATORY PHOTOGRAPHS.
d. The heading for Claim Twenty-Nine at p. 417 of Doc. 34 shall be changed to:

21

DAVIS’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS, AND A RELIABLE SENTENCE WERE
VIOLATED WHEN THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY REJECTING DEFENSE
INSTRUCTIONS FOR THE PENALTY PHASE, AND, AS A
RESULT, THE JUDGMENT OF DEATH MUST BE
REVERSED.

22

2. The parties agree that the amended finalized petition, including the changes to the

19
20

23

headings for Claims 20, 22, 24, and 29, set forth above, is a mixed petition. The parties further

24

agree as to the exhaustion status of each of the thirty-seven claims in the petition, i.e., exhausted,

25

fully unexhausted, partially unexhausted. As to partially unexhausted claims the parties agree on

26

which parts of these claims are unexhausted.

27
28

2
Joint Stip. And Proposed Order Concerning Litigation Related to The Mixed Federal Habeas Petition
Davis v. Davis - (CV13-00408 EMC)

1
2

3. Accordingly, the parties recommend that the following schedule be adopted by the Court
for litigation of the mixed petition:

3

a. Respondent shall file a motion to dismiss the mixed petition in lieu of an answer not

4

later than March 2, 2015. See White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989); O’Bremski v.

5

Maass, 915 F.2d 418, 420 (9th Cir. 1990); Rules Governing Section 2254 Cases in the United

6

States District Courts, Rule 4 and Advisory Committee Notes.

7

b. Petitioner shall file a joint pleading containing his response to the motion to dismiss; his

8

motion for stay, see Rhines v. Weber, 544 U.S. 269, 277-78 (2005); and his motion for an

9

evidentiary hearing as to procedural issues not later than May 1, 2015.

10

c. Respondent shall file a joint pleading containing his reply, if any, to the response to the

11

motion to dismiss; his response to the motion for Rhines stay; and his response to the motion for

12

an evidentiary hearing on procedural issues not later than June 1, 2015.

13

d. Petitioner shall file a joint pleading containing his replies, if any, to the responses to the

14

motions for Rhines stay and for an evidentiary hearing on procedural issues not later than July 3,

15

2015.

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

3
Joint Stip. And Proposed Order Concerning Litigation Related to The Mixed Federal Habeas Petition
Davis v. Davis - (CV13-00408 EMC)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Dated: February 23, 2015

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
RONALD S. MATTHIAS
Senior Assistant Attorney General
/s/ Glenn R. Pruden_______________
GLENN R. PRUDEN
Supervising Deputy Attorney General
Attorneys for Respondent

RENE L. VALLADARES
Federal Public Defender
Nevada Bar No. 11479
MICHAEL PESCETTA
Assistant Federal Public Defender
California Bar No. 88054
[e-mail]
/s/ Heather Fraley_______________
HEATHER FRALEY
Assistant Federal Public Defender
Texas Bar No. 24050621
[e-mail]
411 E. Bonneville Ave., Ste. 250
Las Vegas, Nevada 89101
Tel: [phone]
Fax: [phone]
Attorneys for Petitioner

19

PURSUANT TO STIPULATION, IT IS SO ORDERED.

20

DATED: _____________________, 2015.
March 5
S

27
28

ER

R NIA

FO

LI

dwa
Judge E

H

26

RT

25

en

h
rd M. C

NO

24

____________________________________
DERED
EDWARD S SO OR
I M. CHEN
IT
United States District Judge

A

23

UNIT
ED

22

ISTRIC
ES D
TC
AT
T

RT
U
O

21

N

F
D IS T IC T O
R

C

4
Joint Stip. And Proposed Order Concerning Litigation Related to The Mixed Federal Habeas Petition
Davis v. Davis - (CV13-00408 EMC)