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DAVIS v. LAMARQUE

September 7, 2005.

BAYARD DEVELL DAVIS, Petitioner,
v.
A.A. LAMARQUE, Warden, et al., Respondent.



The opinion of the court was delivered by: JAN ADLER, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

I. Introduction and Procedural Background

Davis is a state prisoner serving a sentence of 53 years, 8 months to life after pleading guilty to four counts of first degree residential burglary, forcible rape, forcible sodomy, two counts of assault with a deadly weapon, wilful cruelty to an elder adult, assault with intent to commit rape, and wilful cruelty to an elder adult under conditions likely to cause great bodily injury or death. (Respondent's Lodgment No. 1, Clerk's Transcript, pp. 125-131, 181-184, 196-197.) Davis was a minor at the time he committed the crimes, but his case proceeded through the adult criminal court pursuant to a determination that he was unfit for juvenile court proceedings on September 23, 1998. (Lodgment No. 4.)

  Davis appealed his sentence, and the California Court of Appeal affirmed the judgment on October 25, 2001. (Lodgment No. 11.) The California Supreme Court denied Davis' petition for review on January 3, 2002. (Lodgment No. 13.)

  Davis filed a Petition for Writ of Habeas Corpus in this Court on March 3, 2003. Respondent filed an Answer on June 18, 2003. On October 17, 2003, the Honorable Jan M. Adler, U.S. Magistrate Judge, issued a Report recommending that the petition be denied in its entirety. On November 6, 2003, Davis filed his objections to the Report, and raised two new claims: (1) that his trial counsel was ineffective for failing to appear personally by allowing an "intern" to appear in his stead at certain court hearings and (2) that his trial counsel was ineffective for failing to present Davis' psychiatric report or mental information to the juvenile court prior to that court's finding that Davis was unfit to proceed in juvenile court.

  On February 12, 2004, the Honorable John A. Houston, U.S. District Judge, issued an order directing Davis to choose among four options regarding the two new unexhausted claims presented in his objections to Judge Adler's Report. Davis then moved to stay the proceedings while he exhausted the two new claims in state court. The Court granted that request in an order filed on March 9, 2004, and extended the stay until February 25, 2005 in an order filed on December 9, 2004.

  On March 8, 2005, after receiving a letter from Davis indicating that he had exhausted the two new claims in state court, Judge Adler issued an order requiring Davis to file an amended petition on or before March 30, 2005. On March 21, 2005, Davis filed his Amended Petition, alleging that his trial counsel was ineffective because he: (1) failed to appear personally by allowing an "intern" to appear in his stead at certain court hearings; and (2) failed to present Davis' psychiatric report or mental information to the juvenile court prior to that court's finding that Davis was unfit to proceed in juvenile court. (Amended Pet. at 1-2.)

  On March 28, 2005 the Court issued an order requiring Respondent to file either a motion to dismiss by April 29, 2005 or an Answer by May 13, 2005. On April 26, 2005 Respondent filed a request for an enlargement of time in which to file its motion to dismiss. The Court granted that request on April 28, 2005, when it issued an order requiring Respondent to file a motion to dismiss on or before May 27, 2005. On May 19, 2005, Respondent filed a Motion to Dismiss, arguing that Davis' two new claims should be dismissed as "conclusory for lack of specificity." (Resp.'s Ps & As at 8, 10.) However, Respondent also argues that each claim should be denied on its merits. (Resp.'s Ps & As at 8, 10.) In addition, Respondent requests that the Court alternatively treat its Motion to Dismiss as a Short Answer. (Resp.'s Notice of Motion to Dismiss at 2.)

  Because Respondent filed what appears to be a combination of a Motion to Dismiss and an Answer, Davis filed both an Opposition to the Motion to Dismiss and a Traverse on May 31, 2005. The Court will first address Respondent's Motion to Dismiss. II. Respondent's Motion to Dismiss

  Respondent argues that both of Davis' claims in his amended petition must be dismissed "as conclusory for lack of specificity." (Resp.'s Ps & As at 8, 10.) Respondent states that because Davis raises each challenge in "only one cursory sentence, with no citation to the record, no citation to federal law, and no analysis whatsoever," the petition should be dismissed. (Resp.'s Ps & As at 8, 10.)

  Rule 2(c) of the Rules Governing Section 2254 Cases states that the petition "shall set forth in summary form the facts supporting each of the grounds . . . specified [in the petition]." Rule 2(c), 28 U.S.C. foll. § 2254. See also Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970) (trial court's dismissal of federal habeas proceeding affirmed where petitioner made conclusory allegations instead of factual allegations showing that he was entitled to relief). In order to satisfy Rule 2(c), Davis must point to a "real possibility of constitutional error." Cf. Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (internal quotation marks omitted). Facts must be stated in the petition with sufficient detail to enable the Court to determine, from the face of the petition, whether further habeas corpus review is warranted. Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). Moreover, the allegations should be sufficiently specific to permit the respondent to assert appropriate objections and defenses. Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Okla. 1989).

  In the current case, Respondent is correct that each of Davis' claims is stated "[in] only one cursory sentence, with no citation to the record, no citation to federal law, and no analysis whatsoever." However, in its habeas packet to prisoners, this Court specifically instructs potential petitioners to "state [the facts] briefly without citing cases or law." In addition, it is clear from Davis' Amended Petition that his two ineffective assistance of counsel claims are based on two specific incidents. Indeed, the very fact that Responded filed its Motion to Dismiss in combination with an Answer shows that Davis' allegations are "sufficiently specific to permit the respondent to assert appropriate objections and defenses." See Harris v. Allen at 565.

  Therefore, the Court recommends that Respondent's Motion to Dismiss be DENIED. The Court will consider the remainder of Respondent's responsive pleading as an Answer, and will consider the petition on its merits.

  III. Legal Analysis

  A. Standard Of Review

  Federal habeas corpus relief is granted "only on the ground that [the state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors of state law are not cognizable in federal habeas corpus proceedings. Id.; Estelle v. ...


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