capital punishment case status report


Jul 15, 2008 - Opinion affirming conviction and death sentence. ... Kleinfeld, Callahan, and Bea, dissented from denial of rehearing en ... separate dissent.

CAPITAL PUNISHMENT CASE STATUS REPORT

July 15, 2008

CAPITAL LITIGATION TEAM: Timothy N. Lang, Division Chief Paul D. Weisser, Senior Counsel John J. Samson Donna H. Mullen Gregory J. Rosen Assistant Attorneys General Shaunna F. Carter, Paralegal Kathy Jerenz, Legal Assistant

ROBERT M. MCKENNA Attorney General State of Washington Corrections Division P.O. Box 40116 Olympia, WA 98504-0116 (360) 586-1445

INTRODUCTION The Capital Punishment Case Status Report is published monthly by the Office of the Attorney General, Corrections Division. It details the legal status of each case where an individual is currently under sentence of death. For easy reference, the names of current counsel for each case are italicized and bolded, and the latest developments on each case are also in bold print. Further information about any of these cases may be obtained by contacting Tim Lang, Corrections Division, or the members of the Capital Litigation Team as listed on the cover page of this report. INDEX Page BROWN, Cal Coburn CROSS, Dayva Michael DAVIS, Cecil Emile ELMORE, Clark Richard GENTRY, Jonathan Lee STENSON, Darold Ray WOODS, Dwayne L. YATES, Robert Lee, Jr.

3 6 10 12 16 20 25 31

KEY TO COURT ABBREVIATIONS 9CIR EDC USSC WDC WSSC

United States Court of Appeals for the Ninth Circuit United States District Court for the Eastern District of Washington United States Supreme Court United States District Court for the Western District of Washington Washington State Supreme Court

DATE

CAUSE

ACTION

NAME:

BROWN, Cal Coburn D.O.B. April 16, 1958 Race: White

DATE OF CRIME:

May 24, 1991

PLACE OF CRIME:

King County

BRIEF FACTS:

Cal Brown was convicted of aggravated first degree murder for the stabbing and strangulation death of Holly Washa. The aggravating circumstances were that the murder was committed (1) to conceal the identity of the person committing the crime, and (2) in the course of or furtherance of Kidnapping in the First Degree, Rape in the First Degree, and Robbery in the First Degree. State v. Brown, King County Superior Court Cause No. 911-03233-1.

DATE OF CONVICTION:

December 10, 1993

SPECIAL SENTENCING:

December 27, 1993

JUDGMENT AND: SENTENCE

King County Superior Court Cause No. 91-1-03233-1 January 28, 1994

TRIAL JUDGE:

Honorable Ricardo S. Martinez

DEFENSE ATTYS:

Terry L. Mulligan Port Orchard, WA Kern Cleven Bellingham, WA

PROSECUTING ATTYS:

Honorable Norm Maleng King County Prosecutor Alfred Matthews, Deputy Theresa Fricke, Deputy 701 Fifth Avenue, Suite 4800 Seattle, WA 98104 (206) 296-9000

APPELLANT'S ATTYS:

(Personal Restraint Petition, WSSC #66686-5) Gilbert Levy Jeannette Jameson Seattle, WA Mill Creek, WA

Lin-Marie Hupp Kent, WA

Judith Mandel (withdrew 10/28/98) Port Orchard, WA

Ronald D. Ness (withdrew 10/28/98) Port Orchard, WA

Michael Trickey (withdrew 05/01/96) Seattle, WA PETITIONER'S ATTYS:

(Federal Habeas Corpus, USDC WDC #C01-715C) GILBERT LEVY ATTORNEY AT LAW 2001 WESTERN AVENUE MARKET PLACE TWO, SUITE 200 SEATTLE, WA 98121-2163 (206) 443-0670 3

SUZANNE LEE ELLIOTT ATTORNEY AT LAW 1300 HOGE BUILDING 705 SECOND AVENUE SEATTLE, WA 98104 (206) 623-0291 Brown July 15, 2008

DATE

CAUSE

RESPONDENT'S ATTYS:

ACTION (Personal Restraint Petition, WSSC #66686-5) Norm Maleng, Prosecuting Attorney Ann Marie Summers, Deputy Deborah Dwyer, Deputy (Federal Habeas Corpus, USDC WDC #C01-715C) ROBERT M. MCKENNA, ATTORNEY GENERAL JOHN J. SAMSON, ASSISTANT ATTORNEY GENERAL Diana M. Sheythe, Assistant Attorney General (withdrew 11/24/03) CORRECTIONS DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 (360) 586-1445

DATE

CAUSE

ACTION

01/28/94

61320-6 WSSC

State v. Brown; Notice of Appeal

02/01/94

61320-6 WSSC

State's Notice of Cross-Appeal

06/27/96

61320-6 WSSC

Oral argument held

07/24/97

61320-6 WSSC

Opinion affirming conviction and death sentence. Justice Smith authored the opinion for the Court. Justice Madsen authored an opinion concurring in part and dissenting in part, in which Justices Alexander and Sanders joined. State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997).

03/09/98

97-7283 USSC

Petition for Writ of Certiorari denied. Brown v. Washington, 523 U.S. 1007, 118 S. Ct. 1192, 140 L. Ed. 2d 322 (1998)

03/13/98

61320-6 WSSC

Mandate issued

03/16/98

61320-6 WSSC

Amended Mandate (with regards to month, date and year)

04/08/98

66686-5 WSSC

Death Warrant (setting execution for May 13, 1998)

04/08/98

66686-5 WSSC

Order (application for stay of execution, pursuant to RAP 16.24, is granted and further proceedings in the trial court are stayed until further order of this court)

04/19/01

66686-5 WSSC

Opinion denying personal restraint petition. Justice Smith authored the opinion for the Court. Justice Sanders dissented. In re Brown, 143 Wn.2d 431, 21 P.3d 687 (2001)

06/14/01

66686-5 WSSC

Certificate of Finality; Supplemental Judgment (costs in the amount of $64,481.44 awarded to the Appellate Indigent Defense Fund and $1,145.00 to the King County Prosecutor’s Office to be paid by the Petitioner)

06/15/01

66686-5 WSSC

Order (the stay of execution is hereby lifted as of the date of the issuance of the certificate of finality)

06/19/01

C01-715 WDC

Order Staying Execution

07/15/02

C01-715-WDC

Amended Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus

09/13/02

C01-715 WDC

Respondent's Answer to Amended Petition for a Writ of Habeas Corpus 4

Brown July 15, 2008

DATE 11/04/02

CAUSE C01-715 WDC

ACTION Reply to Traverse

11/03-4/03

C01-715 WDC

Evidentiary Hearing held

09/16/04

C01-715 WDC

Order (denying petition for writ of habeas corpus); Judgment in a Civil Case

11/09/04

04-35998 9CIR

Petitioner’s Notice of Appeal

07/14/05

04-35998 9CIR

Oral argument held

12/08/05

04-35998 9CIR

Opinion (affirming district court’s judgment regarding the conviction but reversing and remanding with respect to the death sentence on the juror exclusion claim. Judge Kozinski authored the opinion, with Judges Reinhardt and Berzon concurring). Brown v. Lambert, 431 F.3d 661(9th Cir. 2005)

12/20/05

04-35998 9CIR

Petition for Rehearing En Banc

01/27/06

04-35998 9CIR

Answer to Petition for Rehearing En Banc

06/19/06

04-35998 9CIR

Order and Amended Opinion (opinion filed December 8, 2005 and reported at 431 F.3d 661, is withdrawn, and is replaced by the Amended Opinion. The petition for rehearing is otherwise denied. A judge requested a vote on whether to rehear this case en banc, but a majority of the non-recused active judges did not vote in favor of en banc consideration. The petition for rehearing en banc is denied. Judge Tallman, joined by Judges O’Scannlain, Kleinfeld, Callahan, and Bea, dissented from denial of rehearing en banc). Brown v. Lambert, 451 F.3d 46 (9th Cir. 2006).

01/12/07

06-413 USSC

Order (granting petition for writ of certiorari and Respondent’s motion for leave to proceed in forma pauperis). Uttecht v. Brown, 127 S. Ct. 1055 (2007).

04/17/07

06-413 USSC

Oral argument held

06/04/07

06-413 USSC

Opinion reversing the judgment of the Ninth Circuit and remanding for further proceedings. Justice Kennedy authored the opinion for the Court. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented. Justice Breyer, joined by Justice Souter, authored a separate dissent. Uttecht v. Brown, 127 S. Ct. 2218 (2007).

07/06/07

06-413 USSC

Judgment

09/05/07

04-35998 9CIR

Appellant's Supplemental Opening Brief

09/21/07

04-35998 9CIR

Supplemental Brief of Respondent-Appellee

10/15/07

04-35998 9 CIR

Appellant’s Supplemental Reply Brief

01/25/08

04-35998 9 CIR

Oral argument held

06/27/08

04-35998 9 CIR

Opinion (affirming the judgment of the district court. Chief Judge Kozinski authored the majority opinion. Judge Reinhardt dissented). Brown v. Uttecht, --- F.3d ---, 2008 WL 2552689 (9th Cir. June 27, 2008).

07/02/08

04-35998 9 CIR

Motion to Continue Time for Filing Petition for Rehearing En Banc Pursuant to General Order 6.3(a)

07/02/08

04-35998 9 CIR

Order (Motion for Extension of Time to File Petition for Rehearing is granted. Petition due on or before July 18, 2008) 5 Brown July 15, 2008

DATE

CAUSE

ACTION

NAME:

CROSS, Dayva Michael D.O.B.: September 19, 1959 Race: Caucasian

DATE OF CRIME:

March 6, 1999

PLACE OF CRIME:

King County

BRIEF FACTS:

Dayva Michael Cross pleaded guilty to three counts of aggravated first degree murder for the stabbing deaths of his wife, Anouchka Baldwin, and two stepdaughters, Amanda Baldwin and Salome Holly. The aggravating circumstances were that there was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person. State v. Cross, King County Cause 99-1-02212-9.

DATE OF GUILTY PLEA:

October 23, 2000

SPECIAL SENTENCING:

May 7, 2001

JUDGMENT AND SENTENCE:

King County Superior Court Cause No. 99-1-02212-9 June 22, 2001

TRIAL JUDGE:

Honorable Joan DuBuque

DEFENSE ATTYS:

Mark Larranaga Richard Warner Seattle, WA

PROSECUTING ATTYS:

Norm Maleng, Prosecuting Attorney Don Raz, Senior Deputy Prosecutor Tim Bradshaw, Deputy Prosecutor King County Courthouse 516 Third Avenue, Suite W554 Seattle, WA 98104-2362 (206) 296-9000

APPELLANT'S ATTYS:

(Direct Appeal, WSSC Cause #71267-1) Todd Maybrown Allen Hansen & Maybrown P.S. 600 University Street, Suite 3020 Seattle, WA 98101-4105 (206) 447-9681

Kathryn Ross Jones, Ross, Besman &Connolly 828 Second Street, Suite D Mukilteo, WA 98275-1601 (425) 348-7937

PETITIONER’S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #79761-7) TODD MAYBROWN JAMES LOBSENZ ALLEN HANSEN & MAYBROWN P.S. CARNEY BADLEY SPELLMAN 600 UNIVERSITY ST., SUITE 3020 701 5TH AVENUE, SUITE 3600 SEATTLE, WA 98101-4105 SEATTLE, WA 98104-7010 (206) 447-9681 (206) 622-8020

RESPONDENT'S ATTYS:

NORM MALENG, PROSECUTING ATTORNEY Timothy Bradshaw, Deputy (withdrew 01/24/03) DONALD RAZ, DEPUTY JAMES WHISMAN, DEPUTY RANDI J. AUSTELL, DEPUTY 6

Cross July 15, 2008

DATE

CAUSE

ACTION

DATE

CAUSE

ACTION

06/29/01

71267-1 WSSC

Notice of Judgment and Sentence

06/22/04

71267-1 WSSC

Oral argument held

03/30/06

71267-1 WSSC

Opinion (affirming conviction and sentence of death). Majority opinion authored by Justice Chambers. Chief Justice Alexander filed a concurring opinion. Justice Madsen, joined by Justices Charles Johnson, Sanders, and Owens, dissented. State v. Cross, 156 Wn.2d 580, 132 P.3d 80 (2006).

04/06/06

71267-1 WSSC

Cost Bill [$128,781 to be paid to OPD, $706.18 to King County]

11/06/06

06-6333 USSC

Petition for Writ of Certiorari denied. Cross v. Washington, 127 S. Ct. 559 (2006)

11/30/06

71267-1 WSSC

Mandate

12/19/06

71267-1 WSSC

Amended Mandate

01/30/07

99-1-02212-9

Death Warrant (setting execution for February 27, 2007)

01/31/07

79761-7 WSSC

Application for Stay of Execution

02/02/07

79761-7 WSSC

Order Granting Stay of Execution and Appointing Counsel

08/01/07

79761-7 WSSC

Petitioner’s Motion for Leave to Conduct Discovery

09/05/07

79761-7 WSSC

Department of Corrections’ Response to Motion for Leave to Conduct Discovery; Declaration of Richard Morgan.

09/06/07

79761-7 WSSC

Order (Petitioner’s motion for appointment of Professors Boerner and Denno is denied. Motion for appointment of investigator Sanderson and Dr. Souter is granted. Motion to file under seal denied.)

09/07/07

79761-7 WSSC

Reply in Support of Petitioner’s Motion for Leave to Conduct Discovery

09/18/07

99-1-02212-9

Defendant’s Motion to Allow Contact with Jurors

09/26/07

79761-7 WSSC

Respondent's Objection to Ex Parte Order Granting Investigator on Jury Misconduct Issue and Request for Reconsideration

10/01/07

79761-7 WSSC

Petitioner's Response to Respondent's Motion for Reconsideration

10/01/07

79761-7 WSSC

Order (Counsel for Petitioner directed to file answer to Respondent’s Objection to Ex Parte Order Granting Investigator on Jury Misconduct Issue and Request for Reconsideration by October 8, 2007. Parties are directed to advise the Court in writing no later than October 8, 2007 as to what action the trial court judge took on motion for contact with jurors)

10/01/07

79761-7 WSSC

Petitioner's Motion to Vacate Superior Court's Order Precluding Contact with Jurors or, in the Alternative, to Permit Discovery Under RAP 16.26; Supplemental Declaration of Todd Maybrown.

10/02/07

79761-7 WSSC

Joint Motion to Delay Discovery, Briefing, and the Filing of Supporting Documents Relating to Lethal Injection Claims 7 Cross July 15, 2008

DATE

CAUSE

ACTION

10/04/07

79761-7 WSSC

Response to RAP 16.26 Motion and Opposition to Request to Lift Order Limiting Juror Contact

10/04/07

79761-7 WSSC

Order (granting Joint Motion to Delay Discovery, Briefing, and the Filing of Supporting Documents Relating to Lethal Injection Claims; personal restraint petition now due January 29, 2008)

10/04/07

79761-7 WSSC

Clarification of Objection to RAP 16.27 Funding Order and Update on Trial Court Proceedings

10/23/07

79761-7 WSSC

Order (Parties are again directed to advise the Court in writing as to what action the trial court judge took on motion for contact with jurors no later than October 24, 2007)

10/24/07

79761-7 WSSC

Placeholder Petition

10/31/07

79761-7 WSSC

Response to Placeholder Petition

11/05/07

79761-7 WSSC

Reply to Response to Placeholder Petition

11/16/07

79761-7 WSSC

Order (Respondent's motion to reconsider is denied. The motion to contact jurors is granted as to both parties, subject to the requirements of RPC 3.5(c). The parties are also directed to specifically inform jurors that they may, but are not required, to speak with representatives of either or both the petitioner and the respondents, and may end the interviews at any time. The remaining motions are denied. All further proceedings related to discovery relative to alleged juror misconduct shall be heard by King County Superior Court Judge Joan E. DuBuque, except for any Petitioner requests for additional funding, which shall be considered by this Court)

01/29/08

79761-7 WSSC

Petitioner’s Motion for Travel Expenses.

01/29/08

79761-7 WSSC

Personal Restraint Petition; Brief in Support of Personal Restraint Petition; Declarations of Maria Ferndanda Torres, Jonathan L. Grindlinger, MD, Mark Larranaga, Todd Maybrown, Jeffrey Ellis, David Boerner, Dr. Robert Thompson, James E. Lobsenz, Jeffrey Robinson, Richard Warner.

02/08/08

79761-7 WSSC

Order (Petitioner’s Motion for Travel Expenses is denied without prejudice).

04/24/08

79761-7 WSSC

RAP 16.26 Motion for Discovery

04/24/08

79761-7 WSSC

Respondent’s Motion for Judicial Determination of Petitioner’s Competency

05/29/08

79761-7 WSSC

Motion for Extension of Time to File Response to Petition

05/30/08

79761-7 WSSC

Petitioner’s Response in Opposition to Respondent’s Motion for Judicial Determination of Competency; Declaration of Todd Maybrown in Opposition to Respondent’s Motion for a Competency Evaluation; Declaration of James E. Lobsenz

06/02/08

79761-7 WSSC

Reply to Response on Issue of Cross’ Competency

06/04/08

79761-7 WSSC

Reply to Response to State’s RAP 16.26 Motion for Discovery

06/04/08

79761-7 WSSC

Order Granting Motion for Extension of Time

06/10/08

79761-7 WSSC

Petitioner’s Motion for Oral Argument Regarding Respondent’s RAP 16.26 Motion for Discovery 8 Cross July 15, 2008

DATE

CAUSE

ACTION

06/16/08

79761-7 WSSC

Answer to Petitioner’s Motion for Oral Argument Re: RAP 16.26 Discovery Motion

06/27/08

79761-7 WSSC

Petitioner’s Reply in Support of Motion for Oral Argument Regarding Respondent’s RAP 16.26 Motion for Discovery

07/10/08

79761-7 WSSC

Order (Respondent’s Motion for Judicial Determination is denied, Respondent’s RAP 16.26 Motion for Discovery is denied, and Petitioner’s Motion for Oral Argument is denied)

9

Cross July 15, 2008

DATE

CAUSE

ACTION

NAME:

DAVIS, Cecil Emile D.O.B.: September 1, 1959 Race: Black

DATE OF CRIME:

January 25, 1997

PLACE OF CRIME:

Pierce County

BRIEF FACTS:

Cecil Emile Davis was convicted of one count of aggravated first degree murder for the suffocation/asphyxiation murder of 65-year-old Yoshiko Couch using a poisonous chemical (“Goof-Off”/Xylene), after burglarizing her home, robbing her, and raping her. The aggravating circumstance was that the murder was committed in the course of and or furtherance of the crimes of Burglary in the First Degree or Burglary in the Second Degree, Robbery in the First Degree or Robbery in the Second Degree, Rape in the First Degree and/or Rape in the Second Degree. State v. Davis, Pierce County Cause 97-1-00432-4.

DATE OF CONVICTION:

February 6, 1998

SPECIAL SENTENCING:

February 10-12, 1998 May 15, 2007

JUDGMENT AND SENTENCE:

Pierce County Superior Court Cause No. 97-1-00432-4 February 23, 1998 May 18, 2007

TRIAL JUDGE:

Honorable Frederick W. Fleming

DEFENSE ATTYS:

Ronald Ness John L. Cross Port Orchard, WA Julia Lindstrom Lloyd Alton, Jr. Tacoma, WA

PROSECUTING ATTYS:

Gerald Horne, Prosecuting Attorney John W. Ladenburg (Former Prosecuting Attorney) John M. Neeb, Deputy Prosecutor (Withdrew 01/26/00) John Hillman, Deputy Prosecutor (Former Prosecuting Attorney) Gerald T. Costello, Deputy Prosecutor Pierce County Prosecutor's Office County-City Building 930 Tacoma Avenue South, Room 946 Tacoma, WA 98402-2171

APPELLANT'S ATTYS:

(Direct Appeal, WSSC Cause #66537-1) Judith Mandel Port Orchard, WA (Direct Appeal, WSSC Cause #80209-2) ERIC BROMAN NIELSEN BROMAN & KOCH LLC 1908 E. MADISON STREET SEATTLE, WA 98122-2842 (206) 623-2488 10

Ronald D. Ness Port Orchard, WA DAVID KOCH NIELSEN BROMAN & KOCH LLC 1908 E. MADISON STREET SEATTLE, WA 98122-2842 (206) 623-2488 Davis July 15, 2008

DATE

CAUSE

PETITIONER'S ATTYS:

ACTION

(Personal Restraint Petition, WSSC #70834-7) Gilbert Levy

Catherine Ann Chaney

RESPONDENT'S ATTYS:

GERALD HORNE, PROSECUTING ATTORNEY Barbara Corey-Boulet, Deputy John Hillman, Deputy JOHN MARTIN NEEB, DEPUTY KATHLEEN PROCTOR, DEPUTY

09/28/00

66537-1-WSSC

Opinion affirming conviction and death sentence. Justice Smith authored the opinion for the Court. Justice Sanders dissented. State v. Davis, 141 Wn.2d 798, 10 P.3d 977 (2000)

11/04/04

70834-7 WSSC

Opinion granting personal restraint petition in part and remanding for a new sentencing proceeding. Justice Ireland authored the opinion for the Court. Justice Chambers filed a concurring opinion. Justice Sanders dissented. In re Davis, 152 Wn.2d 647, 101 P.3d 1 (2004).

11/29/04

70834-7 WSSC

Certificate of Finality

05/15/07

97-1-00432-4

Sentencing hearing (death sentence imposed)

05/18/07

97-1-00432-4

Judgment and Sentence; Warrant of Commitment to DOC

06/06/07

80209-2 WSSC

Notice of Appeal

08/08/07

80209-2 WSSC

Order (Eric Broman is appointed as lead counsel and David Koch is appointed as cocounsel to represent Cecil Davis in this appeal).

09/13/07

80209-2 WSSC

Notice of Appearance by Kathleen Proctor

11

Davis July 15, 2008

DATE

CAUSE

ACTION

NAME:

ELMORE, Clark Richard (aka James Elmore aka James Lee Dickey) D.O.B.: November 17, 1951 Race: White

DATE OF CRIME:

April 17, 1995

PLACE OF CRIME:

Whatcom County

BRIEF FACTS:

Clark Richard Elmore pleaded guilty to one count of aggravated first degree murder of Christy Onstad, the 14-year-old daughter of Elmore's live-in girlfriend. The two aggravating circumstances were (1) the murder was in the course of and in flight from Rape in the Second Degree, and (2) the murder was committed to conceal the commission and perpetrator of the crime. State v. Elmore, Whatcom County Cause 95-1-00310-1.

DATE OF CONVICTION:

July 6, 1995

SPECIAL SENTENCING:

March 12, 1996

JUDGMENT AND SENTENCE:

Whatcom County Superior Court Cause No. 95-1-00310-1 May 3, 1996

TRIAL JUDGE:

Honorable David Nichols

DEFENSE ATTYS:

John Komorowski Douglas Hyldahl Bellingham, WA

PROSECUTING ATTYS:

David S. McEachran, Prosecuting Attorney Whatcom County Prosecutor's Office Whatcom County Courthouse 311 Grand Avenue Bellingham, WA 98225 (360) 676-6784

APPELLANT'S ATTYS:

(Direct Appeal, Washington Supreme Court #64085-8) Michael P. Iaria Meredith Martin Rountree Seattle, WA Austin, TX Rita Griffith Seattle, WA

Charlotte Cassady (Withdrew 03-06-98) Mobile, AL

Jon Ostlund (06/17/96) Bellingham, WA PETITIONER'S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #70233-1) Jeffrey E. Ellis Meredith Martin Rountree The Defender Association 510 South Congress Avenue 810 Third Avenue Suite 308 Suite 800 Austin, TX 78704-1739 Seattle, WA 98104-1655 (512) 320-0334 (206) 447-3900

12

Elmore July 15, 2008

DATE

CAUSE

ACTION (Federal Habeas Corpus, USDC WDC #C08-0053) JEFFREY E. ELLIS STEVE WITCHLEY ELLIS, HOLMES & WITCHLEY ELLIS, HOLMES & WITCHLEY 705 SECOND AVENUE, SUITE 401 705 SECOND AVENUE, SUITE 401 SEATTLE, WA 98104 SEATTLE, WA 98104 (206) 262-0300 (206) 262-0300

RESPONDENT'S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #70233-1) David S. McEachran, Prosecuting Attorney (Federal Habeas Corpus, USDC WDC #C08-0053) ROBERT M. MCKENNA, ATTORNEY GENERAL GREGORY J. ROSEN, ASSISTANT ATTORNEY GENERAL RONDA D. LARSON, ASSISTANT ATTORNEY GENERAL CORRECTIONS DIVISION PO BOX 40116 OLYMPIA, WA 98504-0116 (360) 586-1445

05/13/96

64085-8 WSSC

Notice of Appeal

11/19/98

64085-8 WSSC

Oral argument held

10/07/99

64085-8 WSSC

Opinion affirming conviction and death sentence and granting State’s motion to strike Appellant’s “Social History”. Justice Talmadge authored the opinion for the Court. Justice Sanders dissented. State v. Elmore, 139 Wn.2d 250, 985 P.2d 289 (1999)

10/02/00

99-9587 USSC

Petition for Writ of Certiorari denied, Elmore v. Washington, 531 U.S. 837, 121 S. Ct. 98, 148 L. Ed. 2d 57 (2000)

10/09/00

64095-8 WSSC

Mandate issued

10/10/00

70233-1 WSSC

Motion for Appointment of Counsel and for Stay of Execution Pursuant to Rules 16.24 and 16.25 of the Rules of Appellate Procedure

10/31/00

95-1-00310-1

Death Warrant (setting execution for November 28, 2000)

11/07/00

70233-1 WSSC

Notation Order (motion for stay of execution is granted; request for appointment of counsel will be considered upon receipt of a recommendation from the Office of Public Defense)

11/15/00

70233-1 WSSC

Petitioner’s Statement Pursuant to RAP 16.25

11/16/00

70233-1 WSSC

Order (appointing Jeffrey Ellis and Meredith Martin Rountree as counsel)

04/06/01

70233-1 WSSC

Petitioner’s ex parte motion for appointment of mental health experts and for filing motion under seal

04/10/01

70233-1 WSSC

Petitioner’s ex parte motion for appointment of an investigator

04/16/01

70233-1 WSSC

Petitioner’s ex parte motion for appointment of an investigator

04/24/01

70233-1 WSSC

Petitioner’s ex parte motion for appointment of attorney expert on standards practice

05/03/01

70233-1 WSSC

Petitioner’s ex parte motion for appointment of mental health experts 13

Elmore July 15, 2008

DATE

CAUSE

ACTION

06/04/01

70233-1 WSSC

Notation Order on Motions (motions granted)

06/29/01

70233-1 WSSC

Petitioner’s Personal Restraint Petition and Brief in Support

07/17/01

70233-1 WSSC

Order (the motion to transport is granted with the following conditions: no one other than the Department of Corrections personnel, relevant medical personnel, and counsel for Mr. Elmore shall be notified of the date, time or place of the testing or be present during testing. Counsel shall give notice to the Department of Corrections at least 24 hours prior to the medical procedures if counsel elects to be present. The Department of Corrections shall have the ultimate authority over the arrangements for transporting Mr. Elmore)

07/23/01

70233-1 WSSC

Declaration from Petitioner (acknowledging receipt of the personal restraint petition and his consent to the petition being filed on his behalf)

11/14/01

70233-1 WSSC

Petitioner's Ex Parte Motion for Additional Funds for Court Reporter [filed under seal]

11/20/01

70233-1 WSSC

Response to Personal Restraint Petition and Brief

12/31/01

70233-1 WSSC

Petitioner's Reply in Support of Personal Restraint Petition [Tab D of the brief is a sealed document]

01/02/02

70233-1 WSSC

Petitioner's Motion for Subpoena Duces Tecum for Medical Records

01/10/02

70233-1 WSSC

Order (Petitioner’s motion for subpoena duces tecum for medical records of Juror #12 is denied without prejudice)

04/01/02

70233-1 WSSC

Petitioner’s Ex Parte Motion for Additional Compensation for Expert Services (Sealed)

09/27/02

70233-1 WSSC

Order (trial court is directed to hold a reference hearing on the issue of whether counsel's failure to consult and call mental health experts in the penalty phase was deficient performance. The court is directed to take evidence on whether counsel's representation in this regard fell below an objective standard of reasonableness based on consideration of all circumstances, including whether any legitimate strategic or tactical reasons supported the decision not to consult and call such experts. The trial court at the conclusion is to enter findings of fact on the issue referred and expedite the process)

03/14/03

70233-1 WSSC

Petitioner's Motion to Expand Scope of Reference Hearing

04/03/03

70233-1 WSSC

Order (Petitioner’s motion to expand scope of reference hearing is denied)

06/05/03

70233-1 WSSC

Order (Petitioner has not established facts that give rise to a substantial reason to believe that the renewed motion for appointment of attorney expert and renewed motion for funds to hire an investigator will produce information that would support relief under RAP 16.4(c). The order for the reference hearing does not require the trial court to make a legal conclusion regarding the adequacy of trial counsel’s performance. The trial court is directed to find the facts regarding the performance of trial counsel, leaving for this court the determination whether trial counsel’s performance was legally adequate. Therefore, no funds are authorized for attorney experts or an investigator. The request to file this order under seal is denied)

01/27/05

70233-1 WSSC

Trial Court Findings of Fact

04/12/05

70233-1 WSSC

Supplemental Brief of Petitioner

05/11/05

70233-1 WSSC

Respondent’s Supplemental Brief 14

Elmore July 15, 2008

DATE

CAUSE

ACTION

12/08/06

70233-1 WSSC

Letter from Court notifying counsel that the pending PRP has been set on the Court's calendar for January 4, 2007, En Banc without oral argument.

11/21/07

70233-1 WSSC

Opinion denying personal restraint petition. Justice Madsen authored the opinion for the Court. Justice Sanders dissented. In re Elmore, 162 Wn.2d 236, 172 P.3d 335 (2007)

12/03/07

70233-1 WSSC

Cost Bill ($238,315.31 to be paid to OPD, $7,643.22 to Whatcom County)

12/10/07

70233-1 WSSC

Petitioner’s Motion for Reconsideration

12/11/07

70233-1 WSSC

Supplemental Cost Bill (showing breakdown of OPD expenses)

01/14/08

C08-0053 WDC

Application for Writ of Habeas Corpus; Application for Appointment of Counsel; Request for Stay of Execution

01/18/08

C08-0053 WDC

Stipulated Motion Regarding Filing of Amended Petition

01/18/08

C08-0053 WDC

Order Permitting Elmore to File Amended Petition

01/18/08

C08-0053 WDC

Order Granting Motion for Stay of Execution

02/22/08

70233-1 WSSC

Order Denying Motion for Reconsideration

02/27/08

C08-0053 WDC

Notice of Washington Supreme Court’s Denial of Motion to Reconsider

03/05/08

70233-1 WSSC

Ruling on Cost Bill ($245,662.53 to be paid to OPD, $496.00 to Whatcom County); Certificate of Finality

04/22/08

C08-0053 WDC

First Amended Petition for Writ of Habeas Corpus

05/06/08

C08-0053 WDC

Motion to Set Deadline for Respondent’s Answer to Elmore’s Amended Habeas Petition

05/07/08

C08-0053 WDC

Order Granting Motion to Set Deadline for Answer to Amended Habeas Petition

05/07/08

C08-0053 WDC

Respondent’s Motion for Extension of Time to File Submission of Relevant State Court Record

05/08/08

C08-0053 WDC

Order Granting Motion for Extension of Time to File Submission of Relevant State Court Record

05/29/08

C08-0053 WDC

Respondent’s Submission of State Court Record Pursuant to CR 104(i)(1)

15

Elmore July 15, 2008

DATE

CAUSE

ACTION

NAME:

GENTRY, Jonathan Lee D.O.B.: August 7, 1956 Race: Black

DATE OF CRIME:

June 13, 1988

PLACE OF CRIME:

Kitsap County

BRIEF FACTS:

Jonathan Gentry was convicted of the aggravated first degree murder of Cassie Holden. The aggravating circumstance was that the murder was committed to protect or conceal the identity of the person committing the crime. State v. Gentry, Kitsap County Superior Court Cause No. 88-1-00395-3.

DATE OF CONVICTION:

June 26, 1991

SPECIAL SENTENCING:

July 2, 1991

JUDGMENT AND: SENTENCE

Kitsap County Superior Court Cause No. 88-1-00395-3 July 22, 1991

TRIAL JUDGE:

Honorable Terence Hanley

DEFENSE ATTYS:

Frederick D. Leatherman, Jr. Jeffery P. Robinson (trial)

PROSECUTING ATTYS:

Russell Hauge, Prosecuting Attorney C. Danny Clem (former Prosecuting Attorney) Irene K. Asai, Deputy Prosecuting Attorney Brian T. Moran, Deputy Prosecuting Attorney

APPELLANT'S ATTYS:

(Direct Appeal, Washington Supreme Court #58415-0) Michael P. Iaria Frederick D. Leatherman, Jr. Seattle, WA Seattle, WA

PETITIONER'S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #62677-4; Federal Habeas Corpus, USDC WDC #C99-0289L) SCOTT ENGELHARD 320 MAYNARD BUILDING 119 FIRST AVENUE SOUTH SEATTLE, WA 98104 (206) 749-0117

MEREDITH M. ROUNTREE 510 SOUTH CONGRESS AVENUE SUITE 308 AUSTIN, TX 78704 (512) 320-0334

Brian Tsuchida (withdrew on 5/13/08) Seattle, WA RESPONDENT'S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #62677-4) Russell Hauge, Prosecuting Attorney Randy Sutton, Deputy Pamela B. Loginsky, Special Deputy Washington Association Of Prosecuting Attorneys

16

Gentry July 15, 2008

DATE

CAUSE

RESPONDENT'S ATTYS:

ACTION (Federal Habeas Corpus, USDC WDC #C99-0289L) ROBERT M. MCKENNA, ATTORNEY GENERAL PAUL D. WEISSER. SENIOR COUNSEL GREGORY J. ROSEN, ASSISTANT ATTORNEY GENERAL CORRECTIONS DIVISION P.O. BOX 40116 OLYMPIA, WA 98504-0116 (360) 586-1445

DATE

CAUSE

ACTION

08/08/91

58415-0 WSSC

State v. Gentry; Notice of Appeal

11/09/93

58415-0 WSSC

Oral argument held

01/06/95

58415-0 WSSC

Opinion (affirming conviction and sentence of death). Majority opinion authored by Justice Andersen. Justices Utter, Johnson and Madsen dissented. State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995)

10/02/95

94-9582 USSC

Petition for Writ of Certiorari denied. Gentry v. Washington, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995)

10/05/95

58415-0 WSSC

Mandate issued

11/02/95

88-1-00395-3

Death Warrant (setting execution for December 5, 1995)

11/14/95

58415-0 WSSC

Order staying execution date of December 5, 1995 pending certificate of finality or further order of the court

12/15/95

62677-4 WSSC

Order appointing counsel

02/18/99

62677-4 WSSC

Opinion denying personal restraint petition. Justice Talmadge authored the opinion for the Court. Justice Sanders, joined by Justice Johnson, dissented in part. In re Gentry, 137 Wn.2d 378, 972 P.2d 1250 (1999)

03/01/99

C99-0289 WDC

Application for Appointment of Counsel

03/08/99

C99-0289 WDC

Order Appointing Counsel (Scott J. Engelhard and Meredith Martin Rountree)

03/09/99

62677-4 WSSC

Petitioner’s Motion for Reconsideration

06/30/99

62677-4 WSSC

Order (Petitioner’s motion for reconsideration is denied); Order Changing Opinion; Order (Respondent’s motion, to dissolve the stay of execution upon issuance of the certificate of finality, is granted)

07/19/99

C99-0289 WDC

Order (staying execution of Jonathan Lee Gentry)

07/21/99

62677-4 WSSC

Certificate of Finality

07/26/99

62677-4 WSSC

Order (the State of Washington is awarded costs in the total amount of $178,869.57 to be paid by the Petitioner, Jonathan Lee Gentry)

10/22/99

C99-0289 WDC

Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254

01/24/00

C99-0289 WDC

Respondent's Answer and Memorandum of Authorities 17

Gentry July 15, 2008

DATE

CAUSE

ACTION

01/24/00

C99-0289 WDC

First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254

02/11/00

C99-0289 WDC

Respondent's Amended Answer and Memorandum of Authorities

06/02/00

C99-0289 WDC

Order (denying motion to prohibit Assistant Attorney General Brian Moran from participating in the litigation of this case); Order (granting in part and denying in part Petitioner's motion for leave to conduct discovery)

07/12/01

C99-0289 WDC

Order Regarding Exhaustion of Claims (the following claims presented were in fact exhausted in the Washington courts and may be considered here: (1) the Brady/Napue claim regarding Brian Dyste; (2) the victim impact statement claims; (3) the claim regarding the admission of petitioner’s previous conviction; and (4) the juror exclusion claim. The following claims were unexhausted and cannot be considered here: (1) the Brady/Napue claims regarding Leonard Smith, Timothy Hicks, and detective misconduct; and (2) the ineffective assistance of counsel claims.)

08/30/01

C99-0289 WDC

Order for Clarification of Exhaustion Order; Order Deferring Motion to Conduct Discovery

03/25/03

C99-0289 WDC

Order Denying Motion for Reconsideration and Regarding Related Matters

07/02/03

C99-0289 WDC

Order Regarding Procedural Default (the claims identified as unexhausted in the Court’s Order of Clarification [08/30/01] are now procedurally barred; directing the parties to file memoranda regarding cause and prejudice)

03/08/04

C99-0289 WDC

Oral argument held re: cause and prejudice; Court directs the filing of supplemental briefs not to exceed two pages re: applicability of Banks v. Dretke by March 15, 2004

03/26/04

C99-0289 WDC

Order Regarding Cause and Prejudice (reconsidering sua sponte, and reversing, the Court’s prior decision that the Brady/Napue claims concerning Timothy Hicks and Detectives Wright and Wagner are unexhausted and procedurally defaulted; reserving ruling as to whether Gentry has shown cause for his default regarding the Leonard Smith claims pending an evidentiary hearing; concluding that Gentry has failed to show cause to excuse his default of the penalty phase ineffective assistance claim; denying Gentry’s motion to strike)

08/03/05

C99-0289 WDC

Order Regarding Discovery and Evidentiary Hearing (granting Petitioner’s request to conduct depositions of Brian Moran, Timothy Hicks, Brian Dyste, Detective Wright, Detective Wagner, and CCO Karen Adams; denying Respondent’s request for depositions; scheduling evidentiary hearing on Petitioner’s Brady/Napue claims)

01/05/06

C99-0289 WDC

Petitioner’s Motion for Summary Judgment

01/23/06

C99-0289 WDC

Response in Opposition to Motion for Summary Judgment

01/27/06

C99-0289 WDC

Reply in Support of Motion for Summary Judgment

03/6-9/06

C99-0289 WDC

Evidentiary hearing held

03/15/06

C99-0289 WDC

Minute Order (the Court has conducted an in camera review of witness Jan Mahan’s taped interview and written notes from her subsequent telephone conversation with Brian Dyste. The Court concludes that the Gentry case is never mentioned or referenced in these materials and that they have no bearing on this proceeding).

03/28/06

C99-0289 WDC

Petitioner’s Report of Kay Sweeney in Support of Claim that Counsel was Ineffective for Failing to Investigate Crime Scene Evidence 18

Gentry July 15, 2008

DATE

CAUSE

ACTION

05/22/06

C99-0289 WDC

Petitioner’s Post-Evidentiary Hearing Brief ; Petitioner’s Motion for Discovery Deposition of Leonard Smith; Petitioner’s Motion to Admit Supplemental Exhibits

06/05/06

C99-0289 WDC

Response to Motion to Depose Leonard Smith; Response to Motion to Supplement Evidentiary Hearing Exhibits

06/08/06

C99-0289 WDC

Petitioner’s Reply to Response Motion for Discovery Deposition of Leonard Smith; Petitioner’s Reply to Response to Motion to Admit Supplemental Exhibits

06/29/06

C99-0289 WDC

Respondent’s Post Hearing Brief

07/17/06

C99-0289 WDC

Reply in Support of Petitioner’s Post-Evidentiary Hearing Brief

08/28/06

C99-0289 WDC

Order on Motion for Summary Judgment (denying Petitioner’s motion for summary judgment re: claim A [dismissal of juror for cause])

10/18/07

C99-0289 WDC

Respondent’s Motion for Summary Judgment and Memorandum in Support Thereof

11/13/07

C99-0289 WDC

Petitioner’s Response to Respondent’s Motion for Summary Judgment and Cross Motion for Summary Judgment

11/19/07

C99-0289 WDC

Respondent’s Reply and Response to Petitioner’s Cross-Motion for Summary Judgment

12/07/07

C99-0289 WDC

Reply in Support of Petitioner’s Cross-Motion for Summary Judgment

05/12/08

C99-0289 WDC

Motion to Withdraw as Attorney for Petitioner (re: Brian Tsuchida)

05/13/08

C99-0289 WDC

Order Permitting Withdrawal of Counsel

19

Gentry July 15, 2008

DATE

CAUSE

ACTION

NAME:

STENSON, Darold Ray aka Darold R. J. Stenson D.O.B. November 24, 1952 Race: White

DATE OF CRIME:

March 25, 1993

PLACE OF CRIME:

Clallam County

BRIEF FACTS:

Darold Stenson was convicted of two counts of aggravated first degree murder for the shooting deaths of his wife, Denise Ann Stenson, and his business partner, Frank Clement Hoerner. The aggravating circumstances were (1) the murders were part of a common scheme or plan, and (2) the murders were committed to protect or conceal the identity of the perpetrator of a crime. State v. Stenson, Clallam County Superior Court Cause No. 93-1-00039-1.

DATE OF CONVICTION:

August 11, 1994

SPECIAL SENTENCING:

August 18, 1994

JUDGMENT AND: SENTENCE

Clallam County Superior Court Cause No. 93-1-00039-1 August 19, 1994

TRIAL JUDGE:

Honorable Kenneth D. Williams

DEFENSE ATTYS:

Frederick D. Leatherman, Jr. Seattle, WA

PROSECUTING ATTYS:

Deborah Snyder Kelly, Prosecuting Attorney David H. Bruneau, trial counsel and former Prosecuting Attorney Stephen Traylor, Deputy Prosecuting Attorney Clallam County Prosecutor's Office Clallam County Courthouse 223 East Fourth Street Port Angeles, WA 98362-3098 (360) 417-2301

APPELLANT'S ATTYS:

(Direct Appeal, Washington Supreme Court #61965-4) James E. Lobsenz Seattle, WA

PETITIONER’S ATTYS:

(Personal Restraint Petition, Washington Supreme Court #66565-6) Judith Mandel (1/29/01) Ronald D. Ness (1/29/01) Port Orchard, WA Port Orchard, WA

Dave Neupert Port Angeles, WA

(Habeas Corpus Petition, USDC WDC Cause #C01-252P) SHERYL GORDON MCCLOUD ROBERT H. GOMBINER ATTORNEY AT LAW FEDERAL PUBLIC DEFENDERS OFFICE 710 CHERRY STREET 1601 FIFTH AVENUE, SUITE 700 SEATTLE, WA 98104 SEATTLE, WA 98101-1605 (206) 224-8777 (206) 553-1100

20

Stenson July 15, 2008

DATE

CAUSE

ACTION

PETITIONER’S ATTYS (cont.): (Personal Restraint Petition, WSSC 72009-6) Sheryl Gordon McCloud Nancy Lynn Talner PMB 200 6016 NE Bothell Way Kenmore, WA 98028-9403 (425) 489-0569 RESPONDENT'S ATTYS:

(Personal Restraint Petition #1 WSSC #66565-6) (Personal Restraint Petition #2 WSSC #72009-6) Deborah Snyder Kelly, Prosecuting Attorney Christopher O. Shea, Former Prosecuting Attorney Lauren Erickson, Deputy (Habeas Corpus Petition, WDC Cause No. C01-252P) (Federal Habeas Corpus, USDC EDC #CT98-5028-JLQ) ROBERT M. MCKENNA, ATTORNEY GENERAL JOHN J. SAMSON, ASSISTANT ATTORNEY GENERAL DONNA H. MULLEN, ASSISTANT ATTORNEY GENERAL CORRECTIONS DIVISION P.O. BOX 40116 OLYMPIA, WA 98504-0116 (360) 586-1445

DATE

CAUSE

ACTION

08/22/94

61965-4 WSSC

Notice of Appeal

12/10/96

61965-4 WSSC

Oral argument held

07/24/97

61965-4 WSSC

Opinion affirming conviction and death sentence. Justice Guy authored the opinion for the Court. Justice Sanders filed a dissenting opinion. State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997)

03/09/98

97-7347 WSSC

Petition for Writ of Certiorari denied. Stenson v. Washington, 523 U.S. 1008, 118 S.Ct. 1193, 140 L. Ed. 2d 323 (1998)

03/16/98

61965-4 WSSC

Mandate issued

04/03/98

61965-4 WSSC

Death Warrant (setting execution for May 20, 1998)

04/07/98

66565-6 WSSC

Application for Stay of Execution Pursuant to RAP 16.24

04/08/98

66565-6 WSSC

Order (the application for stay of execution pursuant to RAP 16.24 is granted and further proceedings in trial court are stayed until further order of this Court)

01/04/01

66565-6 WSSC

Opinion denying personal restraint petition. Chief Justice Guy authored the opinion. Justice Sanders dissented. In re Stenson, 142 Wn.2d 710, 16 P.3d 1 (2001)

01/29/01

66565-6 WSSC

Certificate of Finality; Order Dissolving Stay of Execution

02/21/01

01-096M WDC

Order Appointing Public Defender (Robert H. Gombiner of Federal Public Defender’s Office)

03/06/01

C01-252 WDC

Order Granting Motion for Stay of Execution 21

Stenson July 15, 2008

DATE

CAUSE

ACTION

05/01/01

C01-252 WDC

Order (on Respondent’s motion regarding 28 U.S.C § 2261)

12/28/01

72009-6 WSSC

Personal Restraint Petition [Second]; Opening Brief in Support of Personal Restraint Petition

01/02/02

C01-252 WDC

Petition for Writ of Habeas Corpus; Memorandum in Support of Petition for Writ of Habeas Corpus; Declaration of John A. Strait

03/04/02

C01-252 WDC

Respondent’s Answer, Memorandum of Authorities and Motion to Strike

04/04/02

72009-6 WSSC

Response to Personal Restraint Petition; Motion to Strike Petitioner’s Personal Restraint Petition

04/30/02

C01-252 WDC

Petitioner’s Memorandum Regarding Procedural Defenses Only

05/01/02

72009-6 WSSC

Petitioner’s Opposition to Motion to Strike Personal Restraint Petition

05/06/02

C01-252 WDC

Motion to Expand the Record; Opposition to State’s Motion to Strike

05/15/02

C01-252 WDC

Response to Motion to Expand the Record and Reply to Opposition to State’s Motion to Strike

06/25/02

C01-252 WDC

Reply to Petitioner’s Memorandum Regarding Procedural Defenses

09/11/02

C01-252 WDC

Order Staying Petition (the petition for writ of habeas corpus is stayed until further order of the Court. Counsel shall notify the court within 24 hours of any order issued by the Washington State Supreme Court which addresses Petitioner's personal restraint petition)

09/11/03

72009-6 WSSC

Opinion granting State’s motion to strike Petitioner’s Second Personal Restraint Petition. Chief Justice Alexander authored the opinion for the Court, holding that the petition is a mixed petition, containing both claims that are time-barred under RCW 10.73.090 and also claims that may fall within one of the exceptions to the time bar rule, RCW 10.73.100. The petition is dismissed. State v. Stenson, 150 Wn.2d 207, 76 P.3d 241 (2003).

10/06/03

72009-6 WSSC

Certificate of Finality

10/13/03

74593-5 WSSC

Personal Restraint Petition [Third]

11/18/03

C01-252 WDC

Order Granting Motion to Lift Stay, and to Proceed with Habeas Corpus Proceedings

11/24/03

74593-5 WSSC

Response to Personal Restraint Petition

11/24/03

72009-6 WSSC

Supplemental Judgment

04/27/04

C01-252 WDC

Order Granting Petitioner’s Motion to Take Judicial Notice (re: State v. Ridgeway court documents)

11/24/04

74593-5 WSSC

Opinion denying third personal restraint petition as an abuse of the writ. Chief Justice Alexander authored the opinion for the Court. Justice Sanders dissented. In re Stenson, 153 Wn.2d 137, 102 P.3d 151 (2004).

01/07/05

74593-5 WSSC

Certificate of Finality

07/06/05

C01-252 WDC

Oral argument held 22

Stenson July 15, 2008

DATE

CAUSE

ACTION

07/26/05

C01-252 WDC

Order (denying Petitioner’s petition for writ of habeas corpus, granting Respondent’s Motion to Strike; denying Petitioner’s Motion to Expand the Record, denying Petitioner’s Motion re: Evidentiary Hearing; and granting Petitioner’s Motion to Take Judicial Notice); Judgment in a Civil Case

09/06/05

C01-252 WDC

Order Denying Petitioner’s Motion for Reconsideration

09/14/05

C01-252 WDC

Notice of Appeal

09/15/05

C01-252 WDC

Notice of Appeal (re-file)

10/06/05

C01-252 WDC

Order (granting Petitioner’s motion for certificate of appealability)

10/13/05

C01-252 WDC

Order (granting motion for stay of execution pending appeal; stay will terminate upon issuance of mandate)

02/06/06

05-99011 9CIR

Appellant/Petitioner’s Opening Brief

04/14/06

05-99011 9CIR

Appellee/Respondent’s Answering Brief

04/19/06

05-99011 9CIR

Order (Appellee/Respondent’s motion to strike pages 21-27, 36-41 and 43 from Petitioner’s Excerpts of Record is granted)

05/09/06

05-99011 9CIR

Petitioner/Appellant’s Reply Brief

09/14/06

05-99011 9CIR

Oral argument held

09/24/07

05-99011 9 CIR

Opinion affirming the judgment of the district court. Chief Judge Schroeder authored the opinion, with Judges Kleinfeld and Bea concurring. Stenson v. Lambert, 504 F.3d 873 (9 Cir. 2007).

11/16/07

05-99011 9 CIR

Petition for Rehearing and Suggestion for Rehearing En Banc

12/03/07

05-99011 9 CIR

Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Mr. Darold J. Stenson’s Petition for Rehearing

03/19/08

05-99011 9 CIR

Order (denying petition for rehearing)

04/03/08

05-99011 9 CIR

Mandate

04/04/08

05-99011 9 CIR

Emergency Motion to Recall the Mandate and for Stay of Mandate Pending Filing of Petition for Writ of Certiorari; Declaration of Sheryl Gordon McCloud

04/04/08

05-99011 9 CIR

Response to Stenson’s Motion to Recall the Mandate

04/07/08

05-99011 9 CIR

Reply Re: Motion to Recall the Mandate and for Stay of Mandate Pending Filing of Petition for Writ of Certiorari; Declaration of Sheryl Gordon McCloud

04/09/08

05-99011 9 CIR

Order (granting motion to recall the mandate and staying the mandate pending the filing of petition for writ of certiorari)

05/21/08

07A928 USSC

Application to Justice Kennedy for Extension of Time to File Petition for Writ of Certiorari to the Ninth Circuit Court of Appeals

05/28/08

07A928 USSC

Order (granting extension of time until July 17, 2008 in which to file petition for writ of certiorari) 23 Stenson July 15, 2008

DATE

CAUSE

ACTION

06/23/08

05-99011 9 CIR

Motion for Extension of Stay of Mandate

07/01/08

05-99011 9 CIR

Order (Motion for Extension of Stay of Mandate is granted)

07/15/08

08-5328 USSC

Petition for Writ of Certiorari; Motion for Leave to Proceed In Forma Pauperis

24

Stenson July 15, 2008

DATE

CAUSE

ACTION

NAME:

WOODS, Dwayne D.O.B.: 07-04-69 Race: Black

DATE OF CRIME:

April 27, 1996

PLACE OF CRIME:

Spokane County

BRIEF FACTS:

Dwayne Woods was convicted of two counts of aggravated first degree murder for the murders of Telisha Shaver (Count 1) and Jade Moore (Count 2). As to Count 1, the aggravating circumstances were: (1) the murder was committed to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime; and (2) there was more than one victim and the murders were part of a common scheme or plan of the defendant. As to Count 2, the aggravating circumstances were: (1) [same as #1 above]; and (2) the murder was committed in the course of or in furtherance of the crime of first degree rape; and (3) [same as #2 for Count 1]. State v. Woods, Spokane County Superior Court Cause No. 96-1-01143-7.

DATE OF CONVICTION:

June 20, 1997

SPECIAL SENTENCING:

June 25, 1997

JUDGMENT AND: SENTENCE

Spokane County Superior Court Cause No. 96-1-01143-7 July 23, 1997

TRIAL JUDGE:

Honorable Michael E. Donohue

DEFENSE ATTYS:

Richard Fasey James Sheehan James Ames Spokane, WA

PROSECUTING ATTYS:

Steven Tucker, Prosecuting Attorney James R. Sweetser, prior counsel and former Prosecuting Attorney John F. Driscoll, Senior Deputy Prosecutor Spokane County Prosecutor’s Office Public Safety Building West 1100 Mallon Avenue Spokane, WA 99260 (509) 477-3662

APPELLANT’S ATTYS:

Lenell Rae Nussbaum Market Place Two 2001 Western Avenue Suite 200 Seattle, WA 98121-2163 (206) 728-0996

PETITIONER’S ATTYS:

(Personal Restraint Petition #71780-0) Lenell Rae Nussbaum Seattle, WA

Joan M. Fisher Oliver W. Loewy Federal Public Defender - Id 317 West Sixth Street Suite 204 Moscow, ID 83843 (208) 883-0180

25

Judith M. Mandel 524 Tacoma Ave. S. Tacoma, WA 98402-5416 (253) 272-5640 Woods July 15, 2008

DATE

CAUSE

ACTION (Federal Habeas Corpus, USDC EDC #CV-05-0319-LRS) SUZANNE LEE ELLIOTT DAVID ZUCKERMAN ATTORNEY AT LAW ATTORNEY AT LAW 1300 HOGE BUILDING 1300 HOGE BUILDING 705 SECOND AVENUE 705 SECOND AVENUE SEATTLE, WA 98104 SEATTLE, WA 98104 (206) 623-0291 (206) 623-1595

RESPONDENT’S ATTYS:

(Personal Restraint Petition #71780-0) Steven Tucker, Prosecuting Attorney Kevin Korsmo, Senior Deputy (Federal Habeas Corpus, USDC EDC #CV-05-0319-LRS) ROBERT M. MCKENNA, ATTORNEY GENERAL JOHN J. SAMSON, ASSISTANT ATTORNEY GENERAL CORRECTIONS DIVISION P.O. BOX 40116 OLYMPIA, WA 98504-0116 (360) 586-1445

08/04/97

65585-5 WSSC

Notice of Appeal

03/22/00

65585-5 WSSC

Oral argument held

05/24/01

65585-5 WSSC

Opinion affirming conviction and death sentence. Chief Justice Alexander authored the opinion for the Court. Justice Sanders dissented. State v. Woods, 143 Wn.2d 561, 23 P.3d 1046 (2001)

06/01/01

65585-5 WSSC

Cost Bill ($50,975.71 to AIDF & $535.01 to Spokane County Prosecutor)

08/20/01

01-5921 USSC

Petition for Writ of Certiorari

10/09/01

01-5921 USSC

Petition for Writ of Certiorari denied. Woods v. Washington, 534 U.S. 964, 122 S.Ct. 374, 151 L. Ed. 2d 285 (2001)

10/15/01

65585-5 WSSC

Mandate issued

10/26/01

71780-0 WSSC

Letter (from Dwayne Anthony Woods requesting the appointment of Lenell Nussbaum as personal restraint counsel)

11/27/01

96-1-01143-7

Death Warrant (setting execution for December 12, 2001)

11/27/01

71780-0 WSSC

Application for Stay of Execution Pursuant to RAP 16.24

11/27/01

71780-0 WSSC

Notation Order (the application for stay of execution is granted)

01/07/02

71780-0 WSSC

Order (appointing Judith Mandel and Lenell Nussbaum as counsel)

04/12/02

71780-0 WSSC

Ex Parte Motion for Investigative Services and Declaration of Judith Mandel in Support of Motion for Investigative Services

05/02/02

71780-0 WSSC

Letter (copy of letter from Petitioner to Lenell Nussbaum regarding his wishes to waive certain portions of his case) 26 Woods July 15, 2008

DATE

CAUSE

ACTION

05/10/02

71780-0 WSSC

Petitioner’s Motion for Depositions of Dr. John Anthony Brown, Donald Maclaren and William Morig

05/15/02

71780-0 WSSC

Letter (requesting that Lenell Nussbaum and Judith Mandel be withdrawn from the case and an order entered to proceed pro se)

05/28/02

71780-0 WSSC

Answer to Motion for Depositions

05/28/02

71780-0 WSSC

Response of Counsel to Petitioner’s Letter Asking to Proceed Pro Se

06/03/02

71780-0 WSSC

Letter (the motion for depositions, motion for appointment of mitigation expert and Respondent’s motion to compel will be considered at the same time as the personal restraint petition).

06/05/02

71780-0 WSSC

Petitioner’s Reply Memorandum in Support of Motion for Depositions

07/02/02

71780-0 WSSC

Order (the matter is referred to the Spokane County Superior Court to hold a hearing and enter findings in answer to the following questions: (1) Is it Woods’ desire to pursue a post-conviction relief by means of a personal restraint petition? (2) If the answer is yes, is it Woods’ desire to proceed pro se in preparing and filing such a petition? (3) If Woods’ answer to question two is no, or is a conditional or qualified yes, are his present counsel willing to abide by Woods’ instructions regarding issues to be raised in such a petition? The court should make a thorough record and transmit by not later than August 15, 2002, its findings along with a complete record of the hearing)

07/11/02

71780-0 WSSC

Petitioner’s Brief

07/15/02

71780-0 WSSC

Reference Hearing Report (with attached transcript of hearing)

07/22/02

71780-0 WSSC

Letter from Dwayne Woods dated July 17, 2002

08/12/02

71780-0 WSSC

Additional Reference Hearing Report

09/30/02

71780-0 WSSC

Respondent’s Motion to Clarify Status of Petition and Response

10/14/02

71780-0 WSSC

Order (motion to clarify will not be decided at this time. The State should respond to all issues raised in the Personal Restraint Petition and Supplemental Personal Restraint Petition filed by Petitioner's counsel. At the time the Court considers the Personal Restraint Petition and Supplemental Personal Restraint Petition, it will resolve whether it will address issues other than those verified by the Petitioner.)

04/01/03

71780-0 WSSC

Petitioner’s Ex Parte Motion for Appointment of Investigator [filed under seal]

04/02/03

71780-0 WSSC

Petitioner’s Motion to Recall Mandate and Reopen Direct Appeal of Judgment and Sentence

04/07/03

71780-0 WSSC

Petitioner’s Supplemental Brief in Support of Motion to Recall Mandate; Petitioner’s Second Motion for Continuance of Due Date for Amended Petition and for the Supreme Court to Order Office of Public Defense to Authorize Sufficient Funds for Counsel

04/09/03

71780-0 WSSC

Petitioner’s Ex Parte Motion for Authorization of Additional Investigative Hours [filed under seal]

04/14/03

71780-0 WSSC

Answer to Motion to Recall Mandate 27

Woods July 15, 2008

DATE

CAUSE

ACTION

04/16/03

71780-0 WSSC

Amended Personal Restraint Petition

04/21/03

71780-0 WSSC

Petitioner’s Ex Parte Motion for Authorization of Additional Investigative Hours; Declaration of Lenell Nussbaum in Support of Ex Parte Motion for Additional Investigative Hours [filed under seal]

04/25/03

71780-0 WSSC

Petitioner’s Reply Re: Motion to Recall Mandate

05/07/03

71780-0 WSSC

Verification of Petitioner on Amended Personal Restraint Petition

05/07/03

71780-0 WSSC

Respondent’s Motion to Strike Unverified Claims in Amended Personal Restraint Petition; Motion to Strike Time Barred Claims

05/08/03

71780-0 WSSC

Order (Petitioner’s motion to recall mandate and reopen direct appeal of judgment and sentence is denied); Order (Petitioner’s second motion for continuance of due date for the Amended Petition and for the Supreme Court to order Office of Public Defense to authorize sufficient funds for counsel is denied)

05/09/03

71780-0 WSSC

Letter (Respondent’s motions to strike will be passed to the merits and considered at the same time as the personal restraint petition)

05/23/03

71780-0 WSSC

Response to Personal Restraint Petition and Brief of Respondent; Response to Motion for Evidentiary Hearing

05/30/03

71780-0 WSSC

Petitioner’s Response to Motions to Strike Time Barred and Unverified Claims

06/13/03

71780-0 WSSC

Response to Motion to Compel Depositions; Response to Motion to Strike

06/24/03

71780-0 WSSC

Reply Brief in Support of Amended Personal Restraint Petition; Petitioner’s Second Motion for Deposition and for Protective Order

06/25/03

71780-0 WSSC

Response to State’s Motion to Compel Discovery of DNA Testing

06/27/03

71780-0 WSSC

Letter (the following motions were recently filed and the Court has determined to pass them to the merits to be considered at the same time as the Personal Restraint Petition: Respondent’s motion to compel deposition; Respondent’s motion to strike hearsay and incompetent evidence; Respondent’s motion to strike time barred claims and Petitioner’s motion to strike)

07/16/03

71780-0 WSSC

Answer to Motions for Production and Inspection; Answer to Motion to Strike

07/23/03

71780-0 WSSC

Petitioner’s Reply Memorandum in Support of Motion for Production and Inspection of Documents

06/16/05

71780-0 WSSC

Opinion denying personal restraint petition. Chief Justice Alexander authored the opinion for the Court. Justice Sanders dissented. In re Woods, 154 Wn.2d 400, 114 P.3d 607 (2005)

06/23/05

71780-0 WSSC

Respondent’s Cost Bill filed

09/30/05

71780-0 WSSC

Order (denying motion for reconsideration)

10/03/05

71780-0 WSSC

Certificate of Finality

10/14/05

C05-319 EDC

Stipulated Emergency Order Staying Execution of Dwayne Anthony Woods; Emergency Order Staying Execution of Dwayne Anthony Woods 28

Woods July 15, 2008

DATE

CAUSE

ACTION

12/29/05

C05-319 EDC

Notice of Appearance of Oliver W. Loewy

04/12/06

C05-319 EDC

Order of Appointment and General Procedures (Attorney Lenell Nussbaum, Judith Mandel and Oliver Loewy’s motions to withdraw as appointed counsel are granted; Susanne Elliott (as lead counsel) and David B. Zuckerman (as second lead counsel) are appointed as counsel)

04/13/06

C05-319 EDC

Amended Order (Oliver Loewy did not join the motion to withdraw in response to petitioner’s request for reappointment of counsel and that his representation of petitioner is terminated)

07/21/06

C05-319 EDC

Petitioner’s Writ of Habeas Corpus

08/14/06

C05-319 EDC

Petitioner’s Supplement to Writ Petition Under 28 U.S.C. 2254 for Habeas Corpus

08/15/06

C05-319 EDC

Petitioner’s Motion for Order to Show Cause Why Petitioner Remains in the Intensive Management Unit

08/24/06

C05-319 EDC

Respondent’s Response to Motion for Order to Show Cause Why Petitioner Remains in the Intensive Management Unit

09/11/06

C05-319 EDC

State Court Record filed

09/13/06

C05-319 EDC

Petitioner’s Reply Memorandum for Order to Show Cause Why Petitioner Remains in the Intensive Management Unit

09/19/06

71780-0 WSSC

Joint Motion to Unseal Documents

09/22/06

71780-0 WSSC

Order Granting Joint Motion to Unseal Documents

09/29/06

C05-319 EDC

Order (denying Motion for Order to Show Cause Why Petitioner Remains in IMU)

10/19/06

C05-319 EDC

Respondent’ s Supplemental Submission of State Court Record (Previously Sealed Documents)

10/31/06

C05-319 EDC

Respondent’s Answer and Memorandum of Authorities

11/15/06

C05-319 EDC

Amended State Court Record Reference #00010320

01/10/07

C05-319 EDC

Second Amended State Court Record Index

01/11/07

C05-319 EDC

Revised Petition Under 28 U.S.C.§ 2254 for Writ of Habeas Corpus to Incorporate State Court Record Cites; Revised Supplement to Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus to Incorporate State Court Record Cites

07/31/07

C05-319 EDC

Order Re: Procedural Status of Claims and Request to Expand Record

10/01/07

C05-319 EDC

Petitioner’s Brief Regarding Cause and Prejudice; Motion to Expand the Record and File Declarations Under Habeas Rule 7; Memorandum in Support of Motion.

11/09/07

C05-319 EDC

Response to Petitioner’s Motion to Expand the Record; Response to Petitioner’s Brief Re: Cause and Prejudice; Respondent’s Motion for Determination of Whether Claim 4.4 is Procedurally Barred

12/06/07

C05-319 EDC

Petitioner’s Response to Uttecht’s Motion for Determination of Whether Claim 4.4 is Procedurally Barred 29 Woods July 15, 2008

DATE

CAUSE

ACTION

12/06/06

C05-319 EDC

Reply Re: Motion to Expand the Record and File Declarations Under Habeas Rule 7

12/06/07

C05-319 EDC

Petitioner’s Reply Brief Regarding Cause and Prejudice

12/12/07

C05-319 EDC

Reply to Motion for Determination of Whether Claim 4.4 is Procedurally Barred

01/08/08

C05-319 EDC

Amended Order Re: Procedural Status of Claims and Request to Expand Record

01/08/08

C05-319 EDC

Order Granting Respondent’s Motion For Determination of Whether Claim 4.4 is Procedurally Barred

04/03/08

C05-319 EDC

Order Re: Motion to Expand Record and File Declarations and Procedural Status of Claims 5.2 and 4.7

06/02/08

C05-319 EDC

Merits Memorandum

06/06/08

C05-319 EDC

Motion to Expand the Record with Documents Regarding Johnny Knight; Memorandum in Support of Motion to Expand Record with Documents Regarding Johnny Knight

06/11/08

C05-319 EDC

Response to Petitioner’s Motion to Expand the Record with Documents re Johnny Knight

06/12/08

C05-319 EDC

Notice of Hearing re: Petitioner’s Motion to Expand the Record with Documents Regarding Johnny Knight

30

Woods July 15, 2008

NAME:

YATES, Robert Lee, Jr. D.O.B.: May 27, 1952 Race: White

DATE OF CRIME:

1997 and 1998

PLACE OF CRIME:

Pierce County

BRIEF FACTS:

Robert Lee Yates, Jr. was convicted of two counts of aggravated first degree murder for the murders of Melinda Mercer in 1997 and Connie LaFontaine Ellis in 1998. The aggravating circumstances were: (1) there was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the defendant; (2) the murders were committed to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime; and (3) the murders were committed in the course of, in furtherance of, or in immediate flight from the crime of Robbery in the First Degree. State v. Yates, Pierce County Cause No. 00-1-03253-8

DATE OF CONVICTION:

September 19, 2002

SPECIAL SENTENCING:

October 3, 2002

JUDGMENT AND: SENTENCE

Pierce County Superior Court Cause No. 00-1-03253-8 October 9, 2002

TRIAL JUDGE:

Honorable John McCarthy

DEFENSE ATTYS:

Roger Hunko Port Orchard, WA

PROSECUTING ATTYS:

Gerald Horne, Prosecuting Attorney Jerry Costello, Deputy Prosecutor Barbara Corey-Boulet, Deputy Prosecutor County-City Building 930 Tacoma Avenue South Tacoma, WA 98402 (253) 798-7400

APPELLANT'S ATTYS:

GREGORY LINK WA APPELLATE PROJECT 1511 THIRD AVENUE SUITE 701 SEATTLE, WA 98101-3635 (206) 587-2711

Mary Kay High Tacoma, WA

THOMAS KUMMEROW WA APPELLATE PROJECT 1511 THIRD AVENUE SUITE 701 SEATTLE, WA 98101-3635 (206) 587-2711

Roger Hunko (withdrew 11/04/02) Port Orchard, WA RESPONDENT'S ATTYS:

GERALD HORNE, PROSECUTING ATTORNEY JERRY COSTELLO, DEPUTY PROSECUTOR KATHLEEN PROCTOR, PROSECUTOR

31

Yates July 15, 2008

DATE

CAUSE

ACTION

10/17/02

73155-1 WSSC

Notice of Appeal

06/30/05

73155-1 WSSC

Appellant’s Brief

03/31/06

73155-1 WSSC

Respondent’s Brief

06/30/06

73155-1 WSSC

Appellant’s Reply Brief

11/30/06

73155-1 WSSC

Oral argument held

09/27/07

73155-1 WSSC

Opinion affirming conviction and death sentence. Justice Owens authored the opinion for the Court. Justices Johnson and Chambers authored opinions concurring. Justice Sanders dissented. State v. Yates, 168 P.3d 359, 2007 WL 2793120 (2007).

10/18/07

73155-1 WSSC

Motion for Reconsideration

11/06/07

73155-1 WSSC

Motion to Allow Late Filing of Cost Bill; Affidavit of Kathleen Proctor; Cost Bill

11/14/07

73155-1 WSSC

Order (Granting Motion to File Late Cost Bill)

12/24/07

73155-1 WSSC

Order Denying Appellant’s Motion for Reconsideration

01/03/08

73155-1 WSSC

Ruling on Cost Bill (Costs in the amount of $173,254.08 are awarded to the Office of Public Defense and costs in the amount of $183.56 are awarded to Respondent State of Washington, Pierce County, to be paid by Appellant Yates).

01/03/08

73155-1 WSSC

Mandate

01/11/08

73155-1 WSSC

Ruling (recalling Mandate as premature)

03/20/08

07-10069 USSC

Petition for Writ of Certiorari; Motion for Leave to Proceed In Forma Pauperis

05/23/08

07-10069 USSC

Respondent’s Brief in Opposition

06/23/08

07-10069 USSC

Petition for Writ of Certiorari denied. Yates v. Washington, --- S. Ct. ---, 2008 WL 792054 (U.S. June 23, 2008)

07/07/08

73155-1 WSSC

Letter to Court from Yates requesting to have two new attorneys appointed.

32

Yates July 15, 2008

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