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Dixon v. Yates

United States District Court, Eastern District of California

December 24, 2014

FRANK DIXON, Petitioner,
JAMES YATES, Respondent.



Petitioner, a state prisoner proceeding with counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction for second-degree murder, on grounds of ineffective assistance of trial counsel. ECF No. 1. This court has previously held that petitioner's failure to file his petition within the applicable limitations period, see 28 US.C. § 2244(d), was excusable on the basis of actual innocence. ECF Nos. 35, 42. Respondent has since filed an answer to the petition (ECF No. 46), and petitioner has filed a reply (ECF No. 52). For the reasons explained below, an evidentiary hearing is necessary.


I. Overview

The criminal case against petitioner arose from the fatal shooting of his best friend, Barry O'Connell, in 2000. It is undisputed that petitioner did not intend to kill O'Connell, and that petitioner's shotgun had discharged unintentionally. The question at trial, on which second degree murder liability turned, was whether petitioner had acted with implied malice - that is, whether his handling of the shotgun was dangerous to human life, and whether he acted with subjective knowledge of and conscious disregard for that danger. See People v. Dellinger, 49 Cal.3d 1212 (1989). The defense contended that the shooting had been nothing more than a tragic accident. The defense argued that the gun discharged accidentally when petitioner stumbled, and that petitioner had not appreciated the danger that the loaded gun presented due to the effects of prescription painkillers. Counsel presented no medical evidence to support this theory about painkillers, and presented no forensic firearms evidence to support the theory that the gun could have discharged without petitioner having deliberately released the safety lever. Those omissions form the basis of petitioner's ineffective assistance of counsel claim.

Evidence to support the defense theories regarding the gun and regarding petitioner's mental state was developed for the first time after petitioner was convicted. That evidence has been presented here both in support of relief on the merits and in opposition to respondent's motion to dismiss, to establish petitioner's factual innocence of implied-malice murder and thereby escape the harsh consequences of AEDPA's statute of limitations. In the latter context, the court found that no reasonable juror aware of this evidence would have found petitioner guilty beyond a reasonable doubt. See McQuiggin v. Perkins. 133 S.Ct. 1924, 1928 (2013) (establishing standard for actual innocence as exception to statute of limitations); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc) (same).

II. Proceedings in the Trial Court

The trial evidence has previously been summarized at ECF No. 35 (Findings and Recommendations), pp. 5-10. That summary is incorporated here by reference.

On July 19, 2001, the jury found petitioner guilty of second degree murder. CT 246. On October 19, 2001, petitioner was sentenced to a term of 17 years to life imprisonment. CT 305.

III. Post-conviction Proceedings

The Third District Court of Appeal affirmed the judgment on May 15, 2003. Lodged Doc. 2. The California Supreme Court denied review on August 13, 2003. Lodged Docs. 3-4. The first of petitioner's three state habeas petitions was filed in Sacramento County Superior Court on November 13, 2006 and denied on December 18, 2006. The second state habeas petition was filed in the California Court of Appeal, Third Appellate District, and denied on February 21, 2008. The third petition filed in the California Supreme Court on April 30, 2008 was denied on March 18, 2009. Lodged Docs. 5-10.

The instant federal habeas petition was filed on March 17, 2010. ECF No. 1. STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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