Danks v. Martel
Filing
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SECOND ORDER directing Petitioner to file a reply to the response of Respondent regarding dismissal of claims 31 - 35 signed by District Judge Lawrence J. O'Neill on 11/1/2011. ( Reply due by 11/8/2011).(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH MARTIN DANKS,
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Petitioner,
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vs.
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MICHAEL MARTEL, as Acting Warden of San )
Quentin State Prison,
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Respondent.
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_______________________________________ )
Case No. 1:11-cv-00223 LJO
DEATH PENALTY CASE
SECOND ORDER DIRECTING
PETITIONER TO FILE A REPLY TO THE
RESPONSE OF RESPONDENT
REGARDING DISMISSAL OF CLAIMS 31
THROUGH 35
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On October 14, 2011 the Court entered an order holding federal proceedings in abeyance as to
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Claims 1 through 30 and 37, dismissing Claim 36 as premature, and directing Petitioner Joseph Martin
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Danks (“Danks”) to show cause why Claims 31 through 35 should not be dismissed as unexhausted and
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barred by the statute of limitations. Danks timely filed his return to the order to show cause on October
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21, 2011. Respondent Michael Martel, as Acting Warden of San Quentin State Prison, (the “Warden”)
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filed a response to Danks’ return on October 25, 2011.
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Danks maintains that Claims 31 through 35 previously were exhausted in direct appeal
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proceedings before the California Supreme Court. The Warden agrees that Claims 31 through 35 are
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factually exhausted. He disagrees Danks exhausted all the legal bases for his federal claims on direct
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appeal. He argues:
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Claim 31 adds an Equal Protection violation, ineffective assistance of counsel, deprivation of
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the right to a trial by a fair and impartial jury, as well as general violations of his Fifth and Sixth
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Amendment rights to the Eighth Amendment violation for injecting an arbitrary factor into the jury’s
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penalty determination raised in Claim IV on direct appeal;
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Claim 32 adds a general violation of his Fifth Amendment rights as well as his right to be free
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of cruel and unusual punishment under the Eighth Amendment to the violation of his Sixth Amendment
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right to a jury trial, his Eighth Amendment right to enhanced reliability in capital trials, and his
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Fourteenth Amendment rights to Due Process and Equal Protection raised in Claim V on direct appeal;
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Claim 33 adds a violation of his Due Process and Equal Protection rights under the Fourteenth
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Amendment as well as general violations of his Fifth and Sixth Amendment rights to the Eighth
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Amendment violation raised in Claim VI on direct appeal;
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Claim 34 adds general violations of his Fifth and Sixth Amendment rights to the deprivation of
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his Due Process and Equal Protection rights under the Fourteenth Amendment and the deprivation his
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right to reliability of sentencing under the Eighth Amendment raised in Claim VII on direct appeal; and
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Claim 35 adds Fifth, Eighth, and Fourteenth Amendment violations to the deprivation of his right
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to self-representation under the Sixth Amendment raised in Claim I on direct appeal.
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On October 25, 2011, the Court directed Danks to file a reply to the Warden’s response within
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two calendar weeks from the filing of this order. On November 1, 2011, Danks filed a motion to
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discharge the order to show case and delay the resolution of exhaustion until state exhaustion
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proceedings have been completed. By this motion, Danks also requests the Court to hold the entire
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petition in abeyance, with the exception of Claim 36, which has been dismissed as premature. Danks
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represents that the Warden does not oppose his motion.
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The Court denies Danks’ unopposed motion to delay exhaustion resolution of Claims 31 through
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35 pending completion of state exhaustion proceedings and directs Danks to file a reply to the Warden’s
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response on or before November 8, 2011, which is two calendar weeks from the October 25, 2011 order
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in which Danks was first directed to reply.
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IT IS SO ORDERED.
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Dated:
November 1, 2011
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge
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