Link to scans at wm3.org

THIS IS A CAPITAL CASE


IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION


DAMIEN WAYNE ECHOLS,

Petitioner

vs. Case No. 5:04CV00391-WRW

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

-1-


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

-2-


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

-3-


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

-4-


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

-5-


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

-6-


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,

-7-


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.

-8-


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.

//


-9-


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

-10-