THIS
IS A CAPITAL CASE
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DAMIEN WAYNE ECHOLS, ) Case No. 5:04CV00391-WRW
Petitioner
vs.
LARRY NORRIS, Director,
Arkansas Department of Corrections,
Respondent.
__________________
RESPONSE TO MOTION TO DISMISS
AMENDED PETITION FOR WRIT OF HABEAS CORPUS
DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472
DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
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Petitioner DAMIEN WAYNE ECHOLS hereby responds as follows to Respondent
Norris's Motion to Dismiss Petition for Writ of Habeas Corpus for
Non-Exhaustion ("Motion to Dismiss"), filed with this Court on March
2, 2005.
Introduction
Now pending before this Court is Damien Echol's Amended Petition for a Writ of
Habeas Corpus filed on February 28, 2005. As discussed below, that petition
contains a single constitutional claim that, through no fault of petitioner, is
as yet unexhausted in the state courts. In light of that circumstance,
petitioner has asked that the amended petition be stayed and held in abeyance
until the state court disposes of the claim. Respondent Norris, in turn, has
moved for dismissal on the grounds that the Supreme Court and the Eighth
Circuit do not permit use of the "stay and hold" procedure.
Subsequent to the filing of respondent's motion, the Supreme Court issued its
decision in Rhines v. Weber, __U.S.__, 125 S.Ct. 1528 (March 30,
2005). Rhines expressly holds that a district court can and should stay
a mixed habeas petition and hold it in abeyance to permit exhaustion where, as
here, (1) the petitioner has good cause for the failure to exhaust, (2) the
unexhausted claim(s) is potentially meritorious, and (3) there is no indication
that the petitioner engaged in intentionally dilatory litigation tactics. Id.,
at 1535. Petitioner's stay and hold
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request should accordingly be granted and respondent's motion to dismiss
denied.
I. STATEMENT OF FACTS
A. Procedural History
On October 28, 2004, petitioner Echols filed his initial petition for federal
habeas corpus relief in this Court, challenging his 1993 convictions in an
Arkansas trial court on three counts of first degree murder, crimes for which
the trial court imposed a sentence of death. The October 28th petition
challenged the validity of Echols's convictions on five federal constitutional
grounds involving (1) juror misconduct; (2) juror bias; (3) DNA evidence
indicating actual innocence; (4) his trial lawyer's conflict of interest; and
(5) his trial lawyer's ineffective assistance of counsel. The first, second,
and third claims, along with an element of the fifth claim, however, had not
been exhausted in the Arkansas courts at the time that the original petition
was filed, rendering it a "mixed" petition within the meaning of Rose
v. Lundy, 455 U.S. 509 (1982).
By order issued on November 4, 2004, this Court required Respondent Norris to
file a response to Echols's petition. Respondent thereafter sought and received
two extensions of time, to and including March 7, 2005, to file the response. In
the meantime, on February 28, 2005, petitioner filed an amended petition for a
writ of habeas corpus containing essentially the same claims as those
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asserted in the October 28, 2004 petition. The first amended petition,
however, now informed the Court that, but for the claim founded on DNA testing
that would exonerate petitioner of the state crimes, all claims presented
therein and elements thereof had, as of February 28, 2005, been exhausted in
the state courts. Amended Petition, at 10-11, par. 25.
B. Petitioner's Request that the Amended Petition Be Stayed and Held in
Abeyance
Apart from reiterating the bases for each of petitioner's federal claims, the
amended petition expressly addressed the significance of the unexhausted DNA
claim. Responding to statute of limitations concerns raised by 28 U.S.C.section
2244, the petition requested that this Court stay and hold the still-mixed
petition so that exhaustion could be achieved in the Arkansas state courts. See
Amended Petition, at 10-16, par. 25-36.
Among other things, the petition observed that every Circuit other than the
Eighth had authorized the regular use of the "stay-and-abeyance"
procedure for mixed petitions, and that the Eighth Circuit did not conclusively
prohibit it. Id., at 12, par. 29. The
petition further noted that the Supreme Court had granted certiorari to settle
the propriety of the procedure in Rhines v. Weber, 346 F.3d 799 (8th
Cir. 2003), cert. granted 124 S.Ct. 2905 (June 28, 2004) and that,
based on
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the concurring and dissenting opinions in Pliler v. Ford, 124 S.Ct.
2441 (2004), it appeared likely that, when fairly presented with the issue, the
Court would likely endorse it in cases such as this one. Amended Petition, at
11-12, par. 27-29.
C. Respondent's Challenge to the Stay and Abeyance Procedure as the
Basis for the Motion to Dismiss
Respondent Norris filed his Motion to Dismiss on March 2, 2005, i.e., after the
filing of Echols's amended petition on February 28, 2005. The initial and more
lengthy portion of the motion (pp. 1-13) recounted the procedural history of
the case in both the state and federal courts. The concluding portion of the
motion (pp. 13-16) sought an order dismissing the amended petition.
In this connection, respondent observed that under Rose v. Lundy, supra,
the Supreme Court had held that, pursuant to the prior version of 28 U.S.C.
section 2254, a district court confronted with a mixed petition such as that
presented here must dismiss it to permit exhaustion of the claims in the state
courts. Motion, at 14. Respondent further argued that the Eighth Circuit did
not permit use of the stay-and-hold procedure. Id. Respondent
acknowledged that the Supreme Court had granted certiorari in Rhines to
consider the propriety and availability of the procedure, but predicted that
the Court, in the end, would disapprove it. Id., at 14 n.5. On these bases, Respondent
urged the Court to "dismiss the instant petition
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in its entirety and require that Echols fully exhaust all his state court
remedies or, if Echols so chooses, it can dismiss claim three and proceed here
on the remaining four claims." Id., at 15.
II. PURSUANT TO THE SUPREME COURT'S DECISION IN RHINES V.
WEBER, THE COURT SHOULD STAY THE AMENDED PETITION AND HOLD IT IN ABEYANCE
PENDING EXHAUSTION OF PETITIONER'S THIRD CLAIM IN THE STATE COURTS
On March 28, 2005, the Supreme Court issued its decision on the merits in Rhines.
125 S.Ct. 1528 (2005). The Court acknowledged the presence of the dismissal
rule set forth in Rose, supra, but observed that it had been adopted
when there "was no statute of limitations on the filing of federal habeas
corpus petitions." Id., at 1533. For this reason and others, the
Court ultimately ruled that a district court should exercise its discretion to
stay and hold a mixed petition to permit exhaustion in the state courts
"if the petitioner had good cause for the failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics." Id.,
at 1535.
Petitioner plainly satisfies the criteria set forth in Rhines bearing
on the decision whether to stay and hold a mixed petition. Petitioner's
unexhausted claim asserts that DNA testing authorized by the Arkansas courts
will establish
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Echols actual innocence, rendering the judgment and sentence of death a
violation of his federal constitutional rights including, inter alia,
his federal constitutional protection against cruel and unusual punishment. See
Amended Petition at 27-28, par. 63-65. That is a claim which is at the very
least potentially meritorious, since the degree of merit will reflect the extent
to which the present state testing establishes that Echols was not the
perpetrator of the crimes.
Petitioner, moreover, has good cause for the failure to exhaust. The state
statutes authorizing convicted state defendants to pursue testing of DNA evidence
in order to establish actual innocence did not come into being until August 13,
2001. See Ark. Code Ann. §16-112-201 et seq. As respondent's motion
concedes (id., at 10) petitioner filed his state application for
relief pursuant to the DNA statutes in July, 2002, i.e., during the time that
other state collateral proceedings (i.e. the "Rule 37" proceedings)
were still ongoing and well before those other proceedings concluded at the end
of October, 2003. Indeed, in granting a stay of the other collateral proceedings
in September, 2002, the Arkansas Supreme Court stated that the DNA application
had been "appropriately filed in circuit court under procedures
established by Act 1780," Echols v. Arkansas, 350 Ark. 42 (2002).
Furthermore, as the state's procedural history also concedes, litigation
relating to the DNA motion has been ongoing since the time it was filed. Motion,
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at 11-12.
In short, petitioner initiated his application for relief under the DNA statute
in a timely fashion and has been litigating issues relating to the application,
including appropriate testing procedures, at all times thereafter. Nothing in
the state court record establishes a lack of diligence in Echols's effort to
obtain a dispositive ruling on the application. See Motion, at 10-12. Whatever
delay has accompanied the application to date is best attributed to the novel
legal issues it has raised; the fact that Jason Baldwin and Jesse Misskelley,
the two other state defendants convicted in connection with the underlying
crimes, are now participants in the testing procedures initiated by Echols's
application; and the remarkably tedious research and preparation required to
ensure that the relevant testing samples are reliably located and identified. In
this case, these very circumstances not only demonstrate the presence of good
cause for the failure to exhaust, but also undermine any possible suggestion of
dilatory litigation tactics on Echols's part. See Rhines, 125 S.Ct. at
1535. 1
//
1 Should respondent allege the absence of good cause
for the failure to exhaust, the absence of a potentially meritorious claim, or
the presence of dilatory litigation tactics, petitioner respectfully requests
an opportunity for further briefing and/or hearing to develop the record on
such matters.
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Petitioner recognizes that, in light of AEDPA's expressed interest in finality,
the Supreme Court in Rhines stated that where the stay and hold
procedure is employed,
...[D]istrict courts should place reasonable time limits on a petitioner's trip
to state court and back. See, e.g., Zarvela, 254 F.3d, at 381
("[District courts] should explicitly condition the stay on the prisoner's
pursuing state court remedies within a brief interval, normally 30 days, after
the stay is entered and returning to federal court within a similarly brief
interval, normally 30 days after state court exhaustion is completed").
Rhines, 125 S.Ct. at 1535.
Here, of course, should a stay be granted, the Court need not set a time limit
for commencing proceedings in the state court because they are already
underway. Echols, moreover, can further represent, notwithstanding respondents'
dire prediction of further, interminable delay (motion, at 15), that
authorization for actual DNA testing has already been provided to the
responsible forensic laboratory, and that results on the testing are likely to
be produced in a matter of months. Of course, if that testing yields the
results that Echols predicts, it should trigger appropriate relief in the state
courts and render further proceedings in this Court unnecessary.
//
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Finally, Echols agrees that, should a stay be granted, a thirty-day period for
re-commencing proceedings in this court following exhaustion of the DNA claim
in the state courts is entirely reasonable.
Conclusion
For the foregoing reasons, petitioner respectfully requests that this Court
issue an order staying the amended petition and holding it in abeyance until
thirty days following the exhaustion of his third claim, relating to DNA
testing, in the Arkansas courts.
DATED: April 28, 2005
Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
By (signed)
Donald M. Horgan
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
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