Dickey v. Davis

• Decision Date: 12 September 2019
• Docket Number: Case No. 1:06-cv-00357-AWI-SAB
• Court: U.S. District Court — Eastern District of California
• Parties: COLIN RAKER DICKEY, Petitioner, v. RON DAVIS, Warden of San Quentin State Prison, Respondent.

COLIN RAKER DICKEY, Petitioner, v. RON DAVIS, Warden of San Quentin State Prison, Respondent.¹

Case No. 1:06-cv-00357-AWI-SAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 12, 2019

DEATH PENALTY CASE

MEMORANDUM AND ORDER:

(1) DENYING PENALTY PHASE CLAIMS, (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (3) ISSUING A CERTIFICATE OF APPEALABILITY FOR CLAFMS I, II(E), II(I), V, and XIII, and (4) DENYING AS MOOT PETITIONER'S MOTION FOR STAY, ENTRY OF PARTIAL JUDGMENT, and for CERTIFICATES OF APPEALABILITY

(Doc. Nos. 51, 51-1, 145)

CLERK TO VACATE ANY AND ALL SCHEDULED DATES AND SUBSTITUTE RON DAVIS AS RESPONDENT WARDEN AND ENTER JUDGMENT

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 thisaction 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 Justain Riley of the Office of the California Attorney General.

Before the Court for decision are: (i) the petition (Doc. Nos. 51, 51-1); (ii) record based penalty phase claims II(I), II(U), III(A), III(B), III(C), III(D), III(E), III(F), III(G), III(H), V, VI, VII, IX, X, XI, XII(D), XII(E), XII(F), XII(G), XII(H), XX, XXV(A), XXV(B), XXV(C), XXV(D), XXV(E), XXV(F), XXV(G), XXV(H), XXV(I), XXV(J), XXV(K), XXV(L), XXVII, and XXIX (id.); and (iii) Petitioner's motion filed April 29, 2019 seeking stay of penalty phase claims, entry of partial judgment on the previously denied guilt phase claims, and issuance of Certificate of Appealability on claims I, II, XII-XIX, and XXI (Doc. No. 145).

Having previously denied guilt phase claims I, II (portions), IV, VIII, XII (portions), XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, XXVI, and XXVIII (see Doc. No. 135), and upon careful review of the parties' filings and the relevant case law and for the reasons set out below, the undersigned finds that: (i) the penalty phase claims shall be denied on the merits, (ii) the petition for writ of habeas corpus shall be denied, (iii) Petitioner's pending motion for stay of penalty phase claims and entry of partial judgment on guilt claims shall be denied as moot, and (iv) Certificate of Appealability shall issue only for claims I, II(E), II(I), V, and XIII.

I. BACKGROUND

Petitioner was charged in Fresno County with: counts 1 and 2 for murder (Penal Code § 187); counts 3 and 4 for robbery (Penal Code § 211); count 5 for burglary (Penal Code §§ 459/460); special circumstances of felony-murder robbery, felony-murder burglary, and multiple murder (Penal Code §§ 190.2(a)(3), (17), 211, 459/460); and aider and abettor liability (Penal Code § 190.2(b)).² (RT 122-26; 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. (Case No. 416903-3; see also CT 380-385, 463-468, 610-614.)

On March 19, 1991, Petitioner admitted a prior felony conviction (CT 472) and waived personal presence at the penalty phase. (CT 472-476.) On March 22, 1991, the jury returned a penalty phase verdict of death. (CT 478-482, 504.)

On March 26, 1991, the trial court appointed Katherine Hart to represent Petitioner on motions for new trial and to modify the verdict due to Petitioner's dissatisfaction with lead trial counsel Marvin Schultz (hereinafter "Schultz") expressed following the guilt phase verdict.³ (CT 505; RT 5181-87.)

Ms. Hart raised issues of insufficiency of evidence, prosecutorial misconduct, instructional error, Petitioner's erroneous admission of his 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.)⁴

On April 14, 2003, Petitioner filed his first state habeas petition, (hereinafter "SHCP") In re Dickey, S115079 (Lod. Doc. 7), which the California Supreme Court summarily 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 (2005). That court denied Petitioner's request for rehearing on July 13, 2005. People v. Dickey, California Supreme Court 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 (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. (Doc. Nos. 1 & 2.)

On October 4, 2007, Petitioner filed his federal petition for writ of habeas corpus (hereinafter "Petition"). (Doc. No. 51, 51-1.)

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 (hereinafter "SSHCP"), 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, Order Denying Cal. Pet., In re Colin Raker Dickey, No. S165302 (May 29, 2012). (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 29.⁵

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 including 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 request that Respondent's second amended answer be stricken and for further factualdevelopment. (Doc. No. 128.)

On January 13, 2017, the Court denied Petitioner's requests to strike the second amended answer and for factual development of certain guilt phase claims and denied on the merits the noted guilt phase claims. (Doc. No. 135.)

On February 17, 2017, the Court scheduled briefing of the penalty phase claims. (Doc. No. 139.)

On April 17, 2017, Petitioner filed his penalty phase merits brief. (Doc. No. 142.)

On June 19, 2017, Respondent filed his penalty phase merits brief in opposition. (Doc. No. 143.)

On July 17, 2017, Petitioner filed his brief in reply to the opposition. (Doc. No. 144.)

On April 29, 2019, Petitioner filed his noted motion for stay of penalty phase claims, entry of partial judgment on guilt phase claims, and partial Certificate of Appealability. (Doc. No. 145.) Respondent filed his response to the motion on June 27, 2019. (Doc. No. 147.) Petitioner replied to the response on June 28, 2019. (Doc. No. 148.)

On July 8, 2019, the Court vacated the July 15, 2019 hearing on the motion and took the matter under submission. (Doc. No. 149.)

No date has been set for Petitioner's execution.

II. STATEMENT OF FACTS

The following factual summary is taken from the California Supreme Court's opinion in People v. Dickey, 35 Cal. 4th 884 (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 CaseThe 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,

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