Dickey v. Davis

Decision Date13 January 2017
Docket NumberCase No. 1:06–cv–00357–AWI–SAB
Parties Colin Raker DICKEY, Petitioner, v. Ron DAVIS, Warden of San Quentin State Prison, Respondent.
CourtU.S. District Court — Eastern District of California

David A, Senior, Ann–Kathryn Tria, Matthew Laurence Weston, McBreen and Senior, Los Angeles, CA, Joseph Schlesinger, California Appellate Project, San Francisco, CA, for Petitioner.

Justain Paul Riley, Ward Allen Campbell, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Respondent.





Petitioner Colin Raker Dickey is a state prisoner, sentenced to death, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by appointed counsel David Senior, Ann Tria and Matthew Weston.

Respondent Ron Davis is named as Warden of San Quentin State Prison. He is represented in this action by Brian Smiley and Justain Riley of the Office of the California Attorney General.

Before the court for decision are i) petitioner's request to strike respondent's second amended answered filed September 10, 2014, ii) petitioner's record based guilt phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI and XXVIII, including subclaims,2 and iii) petitioner's request for factual development of claims II(B), II(C), II(F), II(G), II(H), II(S), II(T), II(V), XIII, XIV, XV and XXIV.3

Having carefully reviewed the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that respondent's second amended answer filed as an opposition brief shall not be stricken; the petition's noted guilt phase claims shall be denied on the merits; and petitioner's motion for factual development of the noted guilt phase claims shall be denied.

The court sets a case management conference to discuss proceedings on the penalty phase claims and for ex parte budgetary discussions with petitioner's counsel.


Petitioner was charged in Fresno County with counts 1 and 2 for murder (Penal Code § 187 ), with allegations of robbery-murder and burglary-murder special circumstances (Penal Code §§ 190.2(a)(17), 211, 459/460); counts 3 and 4 for robbery (Penal Code § 211 ); count 5 for burglary (Penal Code §§ 459/460); and allegations of multiple murder special circumstance (Penal Code §§ 190.2(a)(3) ) and aider and abettor liability (Penal Code § 190.2(b) ).4 (CT 297–301, 303–307.) Petitioner pleaded not guilty to all the charges. (RT 126; CT 232, 302.)

Petitioner's jury trial began on January 7, 1991 in Fresno County Case No. 416903–3. (CT 295–296.) On March 15, 1991, the jury found petitioner guilty of the murders of Marie Caton and Louis Freiri with special circumstances of felony-murder robbery and felony-murder burglary and multiple murder and found petitioner guilty of first degree robbery of each victim and first degree burglary of their residence. (CT 380–385, 463–468, 610–614.)

On March 19, 1991, petitioner admitted a prior felony conviction (CT 472) and purported to waive presence at the penalty phase. (CT 472–76.) On March 22, 1991, the jury returned a penalty phase verdict of death. (CT 478–82, 504; see also Penal Code, § 190.2, subds. (a)(3), (17)(A)(G).)

On March 26, 1991, responsive to petitioner's dissatisfaction with trial counsel Schultz, the trial court appointed Katherine Hart to represent petitioner on motion for new trial and motion to modify the verdict. (CT 505; RT 5181–87.) Therein Ms. Hart alleged insufficiency of evidence, prosecutorial misconduct, instructional error, improper waiver of prior felony conviction, trial court error and ineffective assistance of counsel at the guilt and penalty phases. (CT 525–589.) The motion for new trial was denied on January 17, 1992. (CT 516–518.) The motion for modification of the verdict was denied on February 21, 1992 and petitioner was sentenced to death. (CT 609–615; Feb. 21, 1992 Transcript, at 50.)5

On April 14, 2003, petitioner filed a state habeas petition, In re Dickey , S115079 (Lod. Doc. 7), which the California Supreme Court denied on November 30, 2005. (Lod. Doc. 10.)

The California Supreme Court affirmed petitioner's conviction on direct appeal on May 23, 2005. People v. Dickey , 35 Cal.4th 884, 28 Cal.Rptr.3d 647, 111 P.3d 921 (2005). That court denied petitioner's request for rehearing on July 13, 2005. People v. Colin Raker Dickey , CSC Case No. S025519.

On February 21, 2006, the United States Supreme Court denied petitioner's writ of certiorari. Dickey v. California , 546 U.S. 1177, 126 S.Ct. 1347, 164 L.Ed.2d 60 (2006).

On March 30, 2006, petitioner began this federal habeas proceeding under 28 U.S.C. § 2254 by filing a combined request for appointment of counsel and temporary stay of execution. On October 4, 2007, petitioner filed his federal petition for writ of habeas corpus.6 On May 21, 2008, this court ordered federal proceedings held in abeyance pending state exhaustion of certain claims. (Doc. No. 69.)

On July 21, 2008, petitioner filed his second state habeas petition, In re Dickey , S165302. (Lod. Doc. 30.) On May 23, 2012, the California Supreme Court summarily denied the second state petition on the merits as to all claim and on procedural grounds as to certain claims. (Lod. Doc. 31.)

Respondent filed his answer in this proceeding (Doc. No. 103) and amended answer correcting clerical error (Doc. No. 105), on August 29, 2013. Therein respondent admitted the jurisdictional allegations and asserted exhaustion and procedural defenses and denied all claims 1 through 29.7

On November 18, 2013, this court ordered bifurcated briefing with the guilt phase claims briefed separately from and prior to the penalty phase claims. (Doc. No. 111.)

On April 16, 2014, petitioner filed his brief in support of guilt phase claims which includes his noted initial request for factual development. (Doc. No. 116.)

On September 10, 2014, respondent filed a second amended answer as his brief in response to petitioner's brief. (Doc. No. 125.)

On November 7, 2014, petitioner filed his brief in reply to respondent's brief including the noted request that respondent's second amended answer be stricken and for further factual development. (Doc. No. 128.)


The following factual summary is taken from the California Supreme Court's opinion in People v. Dickey, 35 Cal.4th 884, 28 Cal.Rptr.3d 647, 111 P.3d 921 (2005), and is presumed correct. 28 U.S.C. § 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the court adopts the factual recitations set forth by the state court. See Vasquez v. Kirkland , 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) ("We rely on the state appellate court's decision for our summary of the facts of the crime.").

I. Facts
A. Guilt Phase
1. The Prosecution Case
The murder victims were Fresno residents—Marie Caton, 76, and Louis Freiri, 67, a friend and boarder of Mrs. Caton's. Their bodies were discovered by one of Mrs. Caton's daughters, Lavelle Garratt. Mrs. Garratt or her sister checked on their mother every day, "[b]ecause she was lonely, because she was our mother, because we loved her and we wanted to see her."
Late in the afternoon of November 8, 1988, when Mrs. Garratt could not reach her mother by telephone, she drove to her house. She found Mrs. Caton on the floor of her bedroom, covered with a bloodstained blanket. Mrs. Caton had been beaten so badly her eyes bulged out of their sockets like golf balls. Mrs. Caton also had knife wounds

on her chest and a jagged cut on her back. She lingered for 11 days, but never regained consciousness. The cause of death was respiratory failure associated with "shock lung syndrome," the shock having been caused by her injuries.

Mr. Freiri wore a brace on his right leg and required a cane. Mrs. Garratt found him facedown, stretched across the archway between the dining room and the living room. A chair, wall, and window blinds near his body were bloodstained. Pieces of his cane were found in the living room and one of the bedrooms. Mr. Freiri had been stabbed in the chest, armpit, and forearm; he also had a bone-deep laceration on his forehead. He was stabbed with such force that two of his ribs were broken. He died of blood loss.

Mrs. Garratt told the police she suspected her son, Richard Cullumber. Cullumber was, Mrs. Garratt believed, a drug addict, and he asked his grandmother Mrs. Caton for money—cash she would take out of a buffet drawer—almost every day. Mrs. Caton "grew up during the Depression and she was afraid of being hungry again, I guess, and so she hid money all over." Among other caches, Mrs. Caton kept at least $6,000 in cash in a metal box placed inside a suitcase stored under her bed. She also kept a smaller sum in another suitcase.

Cullumber, also known as "R.C.," lived in an apartment in Fresno, along with defendant, Gail Goldman, Richard Buchanan, and two other men. The night of the murders Cullumber packed his bag and left the apartment. He returned several days later but fled again when informed the police were looking for him. On November 12, 1988, after a high-speed police chase, Cullumber, cornered, killed himself.

The pistol Cullumber used to shoot himself was registered to Mr. Freiri. He had earlier warned the driver of a car he commandeered, "I need the car; I've already killed a woman."

Two knives possibly linked to the murders were discovered in Mrs. Caton's

kitchen—a butcher knife and a steak knife. The steak knife (

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