Dykes v. Ayers

Background

In 1995, an Alameda County jury convicted Ernest Edward Dykes of murdering nine-year-old Lance Clark, robbing and attempting to murder Clark’s grandmother, and a robbery-related special circumstance. Dykes was sentenced to death. The California Supreme Court affirmed the convictions and sentence, the United States Supreme Court denied review, and the California Supreme Court later denied state post-conviction relief.

Dykes filed a federal petition for a writ of habeas corpus, a procedure allowing a state prisoner to challenge unlawful custody in federal court. The parties had briefed most of the petition’s eight claims, with Claim One remaining to be briefed. On the date his brief was due, Dykes filed an application seeking a stay and abeyance so he could return to state court and exhaust a proposed new claim based on New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Respondent opposed the motion.

Dykes argued that Bruen affected the constitutionality of evidence introduced during the penalty phase concerning his possession of a loaded, concealed firearm during an earlier arrest. He asserted that the evidence should not have been used as aggravating evidence supporting a death sentence. The opinion states that Dykes did not clearly identify the specific constitutional right underlying the proposed claim.

Legal Standard

Federal habeas relief generally cannot be granted until the prisoner has presented each federal claim to the highest available state court. A petition containing both exhausted and unexhausted claims is called a mixed petition. Under Rhines v. Weber, a federal court may stay a mixed petition to allow exhaustion in state court, but the petitioner must show good cause for failing to exhaust, that the unexhausted claim is potentially meritorious, and that the petitioner did not intentionally delay.

The court noted that another procedure, sometimes called the Kelly procedure, can allow a stay of an exhausted petition and does not require a showing of good cause. The court did not apply that procedure because Dykes’s motion invoked Rhines and addressed its requirements.

Discussion

The court gave two reasons for denying the motion. First, the federal petition before it was fully exhausted, not mixed. Because Dykes had not yet filed an amended petition containing an unexhausted claim, there was no mixed petition to stay under Rhines. The court said Dykes would need to file a motion for leave to amend, attach a proposed amended petition, and explain why amendment was authorized before seeking a Rhines stay.

Second, the court held that Dykes had not shown that his proposed Bruen claim was potentially meritorious. Bruen held that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun outside the home for self-defense, and invalidated New York’s requirement that applicants show a special need beyond ordinary self-defense needs. The court explained that Bruen did not prohibit licensing requirements generally and did not prohibit states from criminalizing the concealed carrying of a loaded firearm.

The court observed that Dykes did not allege that he had been denied a license under an unconstitutional discretionary licensing system. Instead, he argued that his prior conduct was lawful and that the evidence of his arrest therefore should not have been admitted. The court noted that California continued to criminalize carrying a concealed firearm and that the California Supreme Court had previously upheld admission of the firearm evidence as supporting an inference of an implied threat of violence.

The court also reasoned that, even assuming Bruen applied retroactively and showed that admitting the evidence violated Dykes’s rights, Dykes still had to show that the alleged error had a substantial and injurious effect on the jury’s penalty verdict. The court’s review of the penalty-phase record did not suggest such an effect. It found that the prosecution emphasized the circumstances of the murder and victim-impact testimony far more than the prior firearm possession, which received comparatively limited attention.

Disposition

Judge Susan Illston denied Dykes’s motion for stay and abeyance. The order permitted Dykes to renew the motion after filing, within fourteen days of the order, a motion to amend supported by a proposed amended petition that fully articulated the prospective Bruen claim and explained why it was potentially meritorious. Alternatively, the order required him to file his summation brief on Claim One within seven days of the order.