Stanford Law School - Robert Crown Law Library

Filed 3/24/08

IN THE SUPREME COURT OF CALIFORNIA

In re DENNIS HAROLD LAWLEY
) S089463
on
Habeas
Corpus.

On January 22, 1989, Brian Seabourn shot and killed Kenneth Lawton
Stewart. In the years that followed, three men were held criminally accountable
for Stewart’s death. Petitioner Dennis Harold Lawley was tried, convicted of first
degree murder with special circumstances, and sentenced to death for hiring Brian
Seabourn and Steven Mendonca to kill Stewart. Seabourn was tried and convicted
of second degree murder. (People v. Seabourn (Super. Ct. Stanislaus County,
1990, No. 244904).) Steven Mendonca pleaded guilty to second degree murder
for assisting Seabourn. (People v. Mendonca (Super. Ct. Stanislaus County, 1990,
No. 255043).) We affirmed Lawley’s conviction and sentence on automatic
appeal. (People v. Lawley (2002) 27 Cal.4th 102 (Lawley).)
In a petition for writ of habeas corpus, Lawley asserted he was factually
innocent of Stewart’s murder because Seabourn shot Stewart at the behest of the
Aryan Brotherhood, a powerful prison gang, not at his behest. Lawley supported
this assertion with, inter alia, a declaration from Seabourn himself asserting that
Lawley was not involved in the murder of Stewart. We issued an order to show
cause and subsequently appointed a referee to hear evidence and make factual
findings. The referee has now issued his report, and the parties have filed briefs
on the merits.
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The principal question we must answer is this: Has Lawley proven to a
sufficient degree of certainty that he was uninvolved in, and innocent of criminal
responsibility for, Kenneth Stewart’s death? We conclude he has not. Referee
Judge John Griffin, after hearing extensive testimony and reviewing written
evidence, concluded Seabourn’s current testimony was of uncertain credibility and
Lawley therefore had failed to show his innocence. Lawley himself does not now
assert he was uninvolved in Stewart’s death, only that Seabourn would not have
killed Stewart “but for” the involvement of the Aryan Brotherhood. We therefore
discharge the order to show cause.
FACTUAL AND PROCEDURAL BACKGROUND
The Crimes and Trial
The following description of the crimes and trial is taken in large part from
our opinion in Lawley’s automatic appeal. (Lawley, supra, 27 Cal.4th at pp. 113-
121.)
On the evening of January 22, 1989, the body of Kenneth Stewart was
found on Keyes Road in Stanislaus County, dead of gunshot wounds to the back of
the head. Stewart, who had been released from prison four days before his death,
had a reputation for robbing drug dealers. In the brief period following his release,
Stewart was known to frequent the Del Rio Mobile Home Park in Modesto, also
known as Butler’s Camp. Lawley rented a cabin at Butler’s Camp, and his cabin
was the scene of much drug dealing.
Ricky Black, a heroin addict and felon who was also charged with
Stewart’s kidnapping and murder, as well as an unrelated drug charge, testified
under a grant of immunity that on the night of the killing he encountered Seabourn
in Butler’s Camp. Seabourn asked him if he had seen Stewart, telling him he
wanted to kill Stewart and needed his help. Black agreed; he knew Stewart was in
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the cabin of Lawrence Woodcock and lured him out by telling him Seabourn
wanted to do a drug robbery. After introducing Stewart to Seabourn, Black got
into Seabourn’s car with Stewart and rode a short distance, but then got out despite
Seabourn’s entreating him to stay. That was the last time Black saw Stewart.
Seabourn later told Black he had killed Stewart and buried the murder weapon. A
few days before the murder, Black had entered Lawley’s cabin just as Stewart was
finishing robbing and assaulting Lawley.
Treva Coonce testified under a grant of immunity at Lawley’s preliminary
hearing and trial. At the preliminary hearing, Coonce, a heroin addict in jail going
through withdrawal and previously a resident of Butler’s Camp, testified that a
few days after Stewart robbed and assaulted Lawley she heard Lawley say, in the
presence of Seabourn, Coonce’s boyfriend Steven Mendonca, and others, that he
“would do anything to have [Stewart] taken care of” and “would pay to have that
[m—————r] killed.” Seabourn responded that they might “work something
out.” Coonce saw Lawley give money to Seabourn, perhaps more than $1,000 but
less than $5,000. Other business transactions were going on in the cabin at the
same time, and Coonce could not say whether the payment was for killing Stewart.
On the night of the murder, Coonce was in her trailer at Butler’s Camp when
Seabourn and Mendonca returned from killing Stewart. Later, Mendonca told her
the gun used in the crime had been buried or thrown into water. At Lawley’s trial,
Coonce repudiated her prior statements and testimony incriminating Lawley and
others.
Sharon Tripp testified she stayed at Lawley’s cabin off and on in January
1989. One morning that month, she entered the cabin and saw Lawley lying on a
couch, with scrapes on his hand and blood on his jacket. Lawley said he had been
robbed the night before by Stewart and would “like to kill the [m—————r].”
He had a gun tucked in his pants.
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David Anderson, an ex-heroin addict who had previously served as a police
informant, testified he visited Lawley’s cabin about six to eight times in January
1989 to purchase drugs. On one occasion, a gun Anderson kept under the front
seat of his truck, which was parked near the cabin, was stolen. When he returned
to the cabin the following day, Lawley appeared to have been badly beaten. When
Anderson asked if he knew who had done it, Lawley did not respond directly to
him, but mentioned the name “Stewart.” Lawley stated he had things taken care of
and that “[i]f the son of a bitch comes back he’s a dead [m—————r].” While
waiting to complete a drug purchase, Anderson saw Lawley, Coonce, and
Mendonca enter the bathroom, leaving the door open an inch and a half. Lawley
had Anderson’s gun holster down the front of his pants, containing a gun
Anderson believed was his. From inside the bathroom, Anderson heard Lawley
say: “I got this. I want this done. I got the means to get this done.” Lawley also
said: “I can give you some tonight, but . . . you won’t get the rest until it is done,
and I want my property back.” Mendonca said: “We know right where he is. I
can get the job done.” Anderson saw a hand go into a woman’s purse and saw an
object he believed was his stolen gun. When the three emerged from the
bathroom, Coonce was carrying a purse and neither Mendonca nor Lawley had the
gun. Mendonca said he wanted some drugs, he was going to take off, it would be
fast, and it would be that night. Lawley packaged some cocaine and heroin and
gave it to Mendonca and Coonce, telling them: “If you want the rest you have got
to get the job done and I want my property back.” Coonce and Mendonca then left
the cabin.
A search of Lawley’s cabin two days after the killing yielded, among other
items, a loaded Ruger .357 magnum pistol and unexpended .357 magnum Federal
cartridges. California Department of Justice Criminalist Jerry Chisum compared
bullet fragments found in, on, or near Stewart’s body with bullets fired from the
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gun found in Lawley’s cabin and testified that gun had fired the shot that killed
Stewart. Witness Charles Anderson identified the gun as one he had sold to David
Anderson a few months before the shooting.
Lawley, who had discharged his appointed attorney and represented himself
after a competency hearing in which he was found competent to stand trial, argued
to the jury that unidentified persons had framed him for the murder because he had
angered them with his efforts to go down in history as “the Beast in Revelations.”1
Lawley also attempted to establish that Seabourn had killed Stewart pursuant to an
Aryan Brotherhood contract. At the time of Lawley’s trial, Seabourn was
unavailable to testify, as he was awaiting his own separate trial in connection with
the killing. Accordingly, Lawley made an offer of proof that Monte Mullins and
David Hager would testify that Seabourn had told them, inter alia, he had
committed the murder at the behest of the Aryan Brotherhood. The prosecutor
objected to the proffered testimony on hearsay grounds; Lawley countered that the
testimony was admissible under the exception for declarations against penal
interest. The trial court ruled that Mullins and Hager could testify that Seabourn
had admitted he was hired to kill, and did kill, Stewart, but could not testify that
Seabourn identified the Aryan Brotherhood as the party that hired him.
Consequently, no testimony regarding the alleged role of the Aryan Brotherhood
in the Stewart murder was admitted at Lawley’s trial.
A jury convicted Lawley of single counts of murder (Pen. Code, § 187),2
conspiracy to commit murder (§ 182, subd. (a)(1)), and solicitation to commit
murder (§ 653f, subd. (b)). It found true a financial-gain special-circumstance

1
See Bible, Book of Revelation 13:1-18, 17:8-18.
2
All further statutory references are to the Penal Code.
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allegation. (§ 190.2, subd. (a)(1).) It also found true an allegation that Lawley
was armed during the commission of a felony. (§ 12022, subd. (a).) The jury
subsequently fixed the penalty for the murder and conspiracy counts at death; the
trial court imposed sentence accordingly. On automatic appeal, we vacated as
unauthorized the special circumstance finding and sentence of death on the
conspiracy count, modified the judgment on the conspiracy count, and otherwise
affirmed the judgment, including the sentence of death on the murder count.
(Lawley, supra, 27 Cal.4th at p. 113.)
The Habeas Corpus Proceedings
On June 26, 2000, during the pendency of his automatic appeal, Lawley
filed a first petition for writ of habeas corpus challenging his conviction and
sentence. The petition asserted Lawley was actually innocent of murder; in
support of this claim, it included, inter alia, a declaration by Brian Seabourn
describing the circumstances of the killing and asserting that it was the result of an
Aryan Brotherhood murder contract. The petition also claimed a violation of due
process in the prosecution’s failure to disclose material exculpatory evidence
consisting of a letter Seabourn had written to the prosecutor after Lawley’s trial,
allegedly exculpating Lawley; portions of Seabourn’s correctional files containing
materials generated during his 1997 debriefing from the Aryan Brotherhood, in
which he likewise allegedly exonerated Lawley; and Seabourn’s handwritten
account of his participation in the Aryan Brotherhood.
We issued an order to show cause limited to these two claims. In their
return, the People, represented by the Attorney General, conceded that Seabourn’s
statements, if true, would establish Lawley’s innocence. Consequently, the
Attorney General did not object to an evidentiary hearing; because Seabourn had
been awaiting trial at the time of Lawley’s trial and had thus been rendered
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unavailable because of his constitutional privilege not to testify, Lawley had never
had a judicial forum in which to proffer such testimony establishing his innocence.
We appointed a referee to hear evidence and answer the following factual
questions:
1. Is Lawley factually innocent because Brian Seabourn killed Kenneth
Stewart, not at Lawley’s request, but solely for or at the direction of the Aryan
Brotherhood or other persons?
2. Did Brian Seabourn communicate with District Attorney James C.
Brazelton, by letter or other means, after Lawley’s trial? If so, what was the
substance of the communication?
3. Does the Department of Corrections (now the Department of
Corrections and Rehabilitation), or any of its employees, agents, or subordinate or
related entities, possess information exonerating Lawley of complicity in the
killing of Stewart?
The referee heard testimony from 18 witnesses, including Seabourn. He
considered a range of documentary evidence. After taking the matter under
submission, the referee concluded (1) Lawley had not demonstrated actual
innocence; (2) Seabourn communicated with Brazelton by letter, but only a single
line in the letter had any bearing on Lawley’s guilt or innocence; and (3) the
Department of Corrections had nothing in its possession that would have
materially helped Lawley.
The parties have filed postreference briefs. The People take no exception to
the referee’s report; Lawley disagrees with each of its conclusions. We consider
them in turn.
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DISCUSSION
I. Lawley’s Actual Innocence Claim
A.
Standards for Deciding an Actual Innocence Claim
“Habeas corpus will lie to vindicate a claim that newly discovered evidence
demonstrates a prisoner is actually innocent.” (In re Hardy (2007) 41 Cal.4th 977,
1016.) We have long recognized the viability of an actual innocence habeas
corpus claim, at least insofar as the claim is based on newly discovered evidence
or on proof false evidence was introduced at trial. (In re Bell (2007) 42 Cal.4th
630, 637 [false evidence]; In re Johnson (1998) 18 Cal.4th 447, 453-454 [both]; In
re Hall (1981) 30 Cal.3d 408, 415-417, 424 [both]; In re Weber (1974) 11 Cal.3d
703, 724 [new evidence].) Here, we issued an order to show cause and ordered an
evidentiary hearing because Lawley submitted newly discovered evidence,
evidence unavailable at the time of trial because of Brian Seabourn’s
constitutional privilege not to testify, that, if credited, suggested Lawley was
factually innocent of the crime for which he had been convicted.
The standard for determining whether to afford prisoners habeas corpus
relief on the ground that newly discovered evidence demonstrates actual innocence
is likewise established. Under principles dating back to In re Lindley (1947) 29
Cal.2d 709, “[a] criminal judgment may be collaterally attacked on habeas corpus
on the basis of newly discovered evidence if such evidence casts ‘fundamental
doubt on the accuracy and reliability of the proceedings. At the guilt phase, such
evidence, if credited, must undermine the entire prosecution case and point
unerringly to innocence or reduced culpability. (In re Hall[, supra,] 30 Cal.3d [at
p.] 417; In re Weber[, supra,] 11 Cal.3d [at p.] 724.)’ (People v. Gonzalez (1990)
51 Cal.3d 1179, 1246.) ‘[N]ewly discovered evidence does not warrant relief
unless it is of such character “as will completely undermine the entire structure of
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the case upon which the prosecution was based.” ’ (In re Weber, at p. 724,
quoting In re Lindley[, at p.] 723.)” (In re Hardy, supra, 41 Cal.4th at p. 1016;
accord, In re Bell, supra, 42 Cal.4th at p. 637; In re Johnson, supra, 18 Cal.4th at
p. 462.) If “a reasonable jury could have rejected” the evidence presented, a
petitioner has not satisfied his burden. (In re Clark (1993) 5 Cal.4th 750, 798,
fn. 33.)
Lawley disputes this standard, arguing that it applies only to the
determination whether a petitioner has shown actual innocence for purposes of
overcoming procedural bars to habeas corpus relief. He argues that he need only
show by a preponderance of the evidence that he is entitled to relief. (E.g., In re
Sassounian (1995) 9 Cal.4th 535, 546 [habeas corpus petitioner bears the burden
of proving facts entitling him to relief by a preponderance of the evidence].)
It is true we referenced the Lindley standard for showing actual innocence
in In re Clark, supra, 5 Cal.4th at page 798, footnote 33, a case analyzing when a
showing of actual innocence might support an exception to the bar against
successive or untimely petitions. In doing so, however, we did not tear the
standard from its roots and render it applicable only to procedural default cases;
instead, both before and after In re Clark we have consistently applied it as the
relevant standard for deciding substantive actual innocence claims, including twice
within just the last year. (See In re Bell, supra, 42 Cal.4th at p. 637; In re Hardy,
supra, 41 Cal.4th at p. 1016.)
As for Lawley’s assertion that a more lenient preponderance of the
evidence standard should apply to his claim for relief based on newly discovered
evidence, we have always recognized that a higher standard applies to such claims.
In re Lindley itself involved claims of both perjured testimony and newly
discovered evidence establishing innocence. The perjured testimony claim was
subject to proof by a preponderance of the evidence: “In a habeas corpus
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proceeding, one who establishes by a preponderance of substantial, credible
evidence that he was convicted by perjured testimony knowingly presented by
representatives of the State, is entitled to a judgment discharging him from
custody . . . .” (In re Lindley, supra, 29 Cal.2d at p. 722.) The newly discovered
evidence claim was subject to the higher standard we have discussed — the
evidence must “completely undermine the entire structure of the case upon which
the prosecution was based.” (Id. at p. 723.) Subsequently, we have consistently
and consciously applied this higher standard, rather than the preponderance
standard, to actual innocence claims. (See, e.g., In re Hardy, supra, 41 Cal.4th at
pp. 1016-1021 [implicitly applying preponderance standard to ineffective
assistance of counsel claim, but applying heightened Lindley standard to newly
discovered evidence claim]; In re Johnson, supra, 18 Cal.4th at pp. 460-462
[acknowledging generally applicable preponderance standard, but applying higher
Lindley standard to actual innocence claim]; In re Branch (1969) 70 Cal.2d 200,
210, 217 [implicitly applying preponderance standard to ineffective assistance of
counsel claim, but applying heightened Lindley standard to newly discovered
evidence claim]; In re Imbler (1963) 60 Cal.2d 554, 560, 569 [applying
preponderance standard to perjured testimony claim and heightened Lindley
standard to newly discovered evidence claim].)
The rationale for our applying a different, higher standard to actual
innocence habeas corpus claims is readily explained. Generally, of course, habeas
corpus claims must surmount the presumption of correctness we accord criminal
judgments rendered after procedurally fair trials. “ ‘For purposes of collateral
attack, all presumptions favor the truth, accuracy, and fairness of the conviction
and sentence; defendant thus must undertake the burden of overturning them.
Society’s interest in the finality of criminal proceedings so demands, and due
process is not thereby offended.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 474,
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quoting People v. Gonzalez, supra, 51 Cal.3d at p. 1260.) Unlike claims directed
at prosecutorial, judicial, juror, or defense counsel misconduct, however, actual
innocence claims based on either newly discovered or nonperjured false evidence
do not attack the procedural fairness of the trial. They concede the procedural
fairness of the trial, but nevertheless attack the accuracy of the verdict rendered
and seek a reexamination of the very question the jury or court has already
answered: Is the defendant guilty of the charges presented? A conviction
obtained after a constitutionally adequate trial is entitled to great weight.
Accordingly, a higher standard properly applies to challenges to a judgment whose
procedural fairness is conceded than to one whose procedural fairness is
challenged. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [motions for
new trial based on newly discovered evidence are subject to a higher standard than
ineffective assistance of counsel claims because they challenge a presumptively
fair trial]; In re Johnson, supra, 18 Cal.4th at p. 462 [rejecting the assertion that a
lower standard should apply to an actual innocence claim in the absence of proof
the trial was infected by procedural errors of constitutional dimension].)
Metaphorically, an actual innocence claim based on newly discovered evidence
seeks a second bite at the apple, but unlike an ineffective assistance of counsel
claim, for example, it does not contend the first bite was rotten.
In the alternative, Lawley contends that under the Eighth and Fourteenth
Amendments to the United States Constitution he need only show that he
“probably is innocent” to obtain relief. (Herrera v. Collins (1993) 506 U.S. 390,
442 (dis. opn. of Blackmun, J.).) Of course, the majority in Herrera rejected that
standard, concluding only that if the Eighth and Fourteenth Amendments
prohibited execution of the innocent — a position it did not endorse — a petitioner
would have to, at a minimum, make a “truly persuasive demonstration of ‘actual
innocence’ ” and the threshold for relief would “necessarily be extraordinarily
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high.” (Herrera v. Collins, at p. 417; accord, House v. Bell (2006) 547 U.S. 518,
___ [126 S.Ct. 2064, 2087].) Nor have we ever concluded the Eighth and
Fourteenth Amendments compel a standard lower than the Lindley standard. We
decline to do so here.
In assessing whether Lawley has satisfied the high standard for actual
innocence claims, we do not consider the question de novo; instead, we view it
through the lens of the referee’s report and findings. “[W]e give great weight to
those of the referee’s findings that are supported by substantial evidence.
[Citations.] This is especially true for findings involving credibility
determinations. The central reason for referring a habeas corpus claim for an
evidentiary hearing is to obtain credibility determinations [citation]; consequently,
we give special deference to the referee on factual questions ‘requiring resolution
of testimonial conflicts and assessment of witnesses’ credibility, because the
referee has the opportunity to observe the witnesses’ demeanor and manner of
testifying’ [citation].” (In re Thomas (2006) 37 Cal.4th 1249, 1256.) Where, as
here, “[t]he referee’s finding on petitioner’s claim of actual innocence was wholly
dependent on his assessment of the credibility of the witnesses before him, a
quintessentially factual inquiry,” we employ the deferential standard of review
applicable to findings of fact to that conclusion. (In re Johnson, supra, 18 Cal.4th
at p. 461.)
B.
Lawley’s Showing of Actual Innocence
After considering the evidence presented, the referee concluded Lawley had
not established his actual innocence. The referee’s conclusion is supported by
substantial evidence.
Brian Seabourn’s testimony was the centerpiece of the evidentiary hearing.
Seabourn testified repeatedly that he killed Stewart on orders he received from the
Aryan Brotherhood while in prison in 1987 or 1988, and Lawley was innocent and
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had nothing to do with the crime. As early as 1989, Seabourn had told others,
including David Hager and Monte Mullins, that the Aryan Brotherhood was
behind the shooting and Lawley was innocent. Seabourn had for a decade
maintained Lawley’s innocence in letters to Lawley’s counsel.
Other witnesses, former Aryan Brotherhood members — Wayne “Smiley”
Richardson, David Hager, Jesse Brun — likewise testified the Aryan Brotherhood
had ordered Stewart killed.3 Richardson testified he told Seabourn: “If you get
the opportunity when you are out there, take care of business” — i.e., kill Stewart.
Hager and Lee Max Barnett both testified that Seabourn told them in the late
1980’s or early 1990’s that he killed Stewart on behalf of the Aryan Brotherhood.
The referee acknowledged there was “plenty of evidence that the AB[4] might have
been involved in the murder of Kenny Stewart.” A reasonable jury might have
credited this testimony.
However, a reasonable jury might also have disbelieved Seabourn and the
former Aryan Brotherhood members supporting him and instead credited the
numerous witnesses at Lawley’s original trial who testified that Lawley had a
grudge against Stewart, wanted him dead, and paid to have him killed.
Alternatively, it might have believed Seabourn and the other witnesses concerning
Aryan Brotherhood involvement, but still believed Lawley was also involved and
culpable.

3
Hager’s statements do not entirely benefit Lawley. Speaking with
investigators for the People, Hager indicated Seabourn got the murder weapon
from Lawley, just as he had testified at Seabourn’s 1990 trial. At the evidentiary
hearing, he initially affirmed but later sought to repudiate these prior statements.
4
“AB” refers to the Aryan Brotherhood.
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Notably, Seabourn has an established history of lying under oath, of lying
about this case, and of lying in order to implicate others and exonerate Lawley. At
the time of the murder, Seabourn told Steven Mendonca to make up stories about
how the Stewart killing had occurred, i.e., lie about how it happened, to confuse
those investigating it. Seabourn took the stand and lied at his own trial for the
Stewart murder, as he did at other trials. At his sentencing, he concocted a phony
“kite,”5 purported to be from an unknown fellow prisoner named “Ron,” that
fingered David Hager as the one responsible for the Stewart killing. The fake kite
claimed Hager was trying to set up Lawley and Seabourn.
At the evidentiary hearing, Seabourn admitted lying to David Hager about
how he killed Stewart. He asserted he would lie under oath to get a man he
deemed innocent, Lawley, out of jail. As the referee noted, he maintained his
friend Steven Mendonca was entirely innocent as well, despite Mendonca’s having
pleaded guilty to second degree murder and accepted a sentence of 15 years to life
for his role in the murder.
At the evidentiary hearing, Seabourn was also imprecise about the details
surrounding the Aryan Brotherhood’s order to kill Stewart. Although he testified
that he was given an order, he had earlier stated in a declaration that he unilaterally
decided to carry out the contract on Stewart to curry favor with the Aryan
Brotherhood. He refused to identify anyone who might have been involved in
giving the order, making it more difficult to confirm or refute his claim. He
testified he had no idea what the basis for the order was, thus contradicting his
statement in an earlier declaration that the hit was ordered because Stewart “had

5
Kites are written messages prisoners pass to each other. (See People v.
Elguera (1992) 8 Cal.App.4th 1214, 1217.)
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‘disrespected’ leaders of the AB over an assault of an inmate named Tinker
Love.”6 He testified that he was given the order orally, or maybe in writing. He
testified that Monte Mullins might have been present when the order was
delivered, or perhaps not.7
Additionally, an April 1995 letter Seabourn wrote to Lawley’s counsel
suggests the Aryan Brotherhood conspiracy to kill Stewart may have been an
elaborate fiction: “[T]his stuff is real old I got at a few friends who said yes that,
that might have been the case that the victim [Stewart] could have been AB or
someone who crossed another member like on a hit list something of that nature.”
He went on: “But I will stay on that issue we discussed about Kenny S. which one
would be better if he was an enemy of the AB that would be no problem because
people get hit daily for running their mouth about things they shouldn’t all over
the USA. But to prove he’s a member [of the AB] would be hard because
everyone knows you have to be around certain people in and out of prison with a
lot of support . . . .” One might conclude that Seabourn, in his desire to assist
Lawley, chose the easier course of concocting a story that Stewart was an enemy
of the Aryan Brotherhood and wound up on their hit list.
In closing, Seabourn offered: “If I can do anything just let me know I know
we’ll need witnesses and most these people are real shady characters but I’ll do

6 Seabourn’s
statement
also contradicted other evidence submitted in support
of the habeas corpus petition, which alleged the hit was ordered because Stewart
“burned” the Aryan Brotherhood by not paying it the “tax” it was due on his drug
sales.
7
While many years have passed since the Stewart murder, one might
reasonably suppose that, given this is the very crime for which Seabourn is serving
a life sentence, the details might have fixed themselves in his mind. His
recollection was certainly clear enough about most other aspects of the crime.
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what I can to get ’em to talk once we know who they are OK” — an offer that
makes more sense if Seabourn was planning to find Aryan Brotherhood associates
serving life sentences with nothing to lose to testify than it does if the order to kill
Stewart was real and the identities of potential witnesses were already fixed. In an
addendum, Seabourn added: “I been thinking about how to get those witnesses to
testify — this is a suggestion I could write them through you but beings we can’t
trust these people 100% I’ll be careful what I say so they can’t hurt us . . . .” He
listed people he thought would “come to our side every one except Ricky Black
unless he’s got life also.” He asked for additional research that might help him
come up with a motive for why he or the Aryan Brotherhood might have wanted
Stewart dead: “[S]o I can check on Stewar[t] situation find out have [your
investigator] find out when Kenny S. was in prison and where, as much as you
can, because I believe we were in DVI [a Tracy prison] together at the same time
and it’s possible he made commitments to me and I passed them on as a middle
man but cosigned for him and when he got out he didn’t follow through. But
theirs 100 different things that could of happened.”8
The letter suggests a motive for constructing such a story, as well. In the
course of the letter, Seabourn offered to “do everything possible to help Dennis
[Lawley]” and repeatedly expressed his concurrent hope that by doing so, he
might get help in seeking a reduced sentence. In a previous meeting, Lawley’s

8
Seabourn’s unusual candor in this letter, one of his first to Lawley’s
counsel, may be explained by his comment: “I’m pretty sure the mail is 100%
safe here I’ll always sign my name on the back of the envelope so you’ll know if
it’s been messed with or not.” He also marked the letter as “Confidential Legal
Mail,” a practice he continued throughout their correspondence, although
Lawley’s counsel did not represent him. In subsequent letters, he became more
circumspect.
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counsel had made Seabourn feel like he might have hope of getting out of prison
some day. Seabourn repeatedly expressed gratitude for this and other kindnesses
counsel had shown him.9
A 1995 Seabourn letter to Aryan Brotherhood member Jimmy Pendleton
paints a similar picture and creates reason to doubt not only Seabourn but the
various former Aryan Brotherhood members who corroborated his story.
Seabourn appears to be seeking permission concerning possible future testimony
by Aryan Brotherhood members and associates. He then notes Lawley’s counsel
“went out of his way to help me he has even offered to buy me a T.V. and to help
me get an attorney and investigator.” He goes on: “Once [Lawley’s counsel]
decides the best way to go about this I’ll let you know what we’re going to need
and what kind of witnesses it has to be all verified though so the D.A. can’t punch
holes in our case but that should be no problem once we find out where these rats
have done their time and when which jails they were in and so on then we’ll be
able to find intelligent credible witnesses to support whatever it is we need done.”
He notes in closing: “Also [Lawley’s counsel] says the DA through away

9
In another 1995 letter to Lawley’s counsel, Seabourn wrote: “I asked you
what you were willing to do for me or how far your willing to go for me I think
it’s best you wait until you get the facts in front of you first and decide the road
we’re going to go down its just I get over excited I mean all I think about is I
might get to get out someday and I hate to loose that feeling But I’m going to try
to pretend I’ll never get out I know you told me not to get my hopes up but I can’t
help it I know at the very least I’ll get to go out to Court again and that I’ll have a
little money once in a while regardless what happens.” Similarly, in a 1995 letter
to Lawley’s parents, Seabourn wrote: “But I do need an answer on this, this thing
with Dennis [Lawley]. His attorney wrote me I’m sending you the letter with this
one let me know what you and Dennis or better yet Dennis’s attorney wants me to
do how far to go. I know I can get Dennis off but I want to make sure I have his
word he’ll look out for me.”
17

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everything so I guess we can make up [s—t] because they can’t prove it ain’t
true.” Consistent with their assertion that Richardson, Brun, Hager, and others
were untrustworthy, the People pointed out in cross-examination that although
each had been debriefed upon leaving the Aryan Brotherhood, a process that
involved revealing as much as they knew about Aryan Brotherhood crimes, not
one mentioned in debriefing that Stewart was either targeted for murder or had
been murdered.
In doubting Seabourn, the referee offered another possible motive. When
Seabourn was searched before testifying at the evidentiary hearing, a handcuff key
was found hidden in his rectum. In assessing Seabourn’s credibility, the referee
considered as a possible motivation for testifying that Seabourn might have hoped
to use the opportunity of his transport from an out-of-state prison to and from the
evidentiary hearing to attempt escape.
Finally, as the referee also noted, Seabourn testified that he had buried the
murder weapon, but a ballistics expert at trial testified that a gun found in a search
of Lawley’s cabin after the murder (and established by other witnesses to have
been David Anderson’s gun) matched shell fragments found in, on, or near
Stewart’s body and was the murder weapon. (Lawley, supra, 27 Cal.4th at p. 118.)
Another ballistics expert testified at the evidentiary hearing, and he too confirmed
this match. Based on the record as it existed at the close of the evidentiary
hearing, the referee could take into account that discrepancy.10

10
Long after the close of the evidentiary hearing, Lawley submitted evidence
purporting to show a gun had been found in the field where Seabourn claimed he
had buried one. However, Lawley submitted no foundation establishing the gun
was linked to the Stewart murder. Accordingly, we denied his motion to augment
the record and do not consider the matter further in connection with his current
petition for writ of habeas corpus.
18

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Given this history, it is difficult to know where the lies end and the truth
begins with Seabourn. Seabourn admitted having lied, having directed Mendonca
to lie, and having created a phony document implicating an innocent third party,
all in order to shield himself and his friends, Mendonca and Lawley, from
punishment for Stewart’s death. His letters suggest he may have rounded up
fellow ex-Aryan Brotherhood friends to help him portray Lawley as innocent. The
referee apparently concluded that Seabourn, like the boy who cried wolf, could not
be deemed reliable, or at a minimum that a reasonable jury could have rejected
Seabourn’s testimony that Lawley was uninvolved. That conclusion is entitled to
special deference. (See, e.g., In re Malone (1996) 12 Cal.4th 935, 946.)
Against the referee’s conclusion, Lawley repeatedly argues the People
presented no evidence Seabourn killed Stewart at Lawley’s instigation. They did
not have to; that evidence was presented at trial. As in In re Branch, supra, 70
Cal.2d at page 217, Seabourn’s testimony may point to Lawley’s innocence if
believed, but there is a substantial question whether it should be believed.
Lawley’s evidentiary hearing showing presents an alternate theory for why
Stewart was killed, but given the doubts surrounding Seabourn’s credibility, it is
not a theory a reasonable jury would have been compelled to accept. Lawley
himself hedges, acknowledging in his brief that “[p]erhaps [he] was involved in
some way.” Accordingly, Lawley has failed to show entitlement to relief on his
claim of actual innocence.
II. Nondisclosure of Exculpatory Evidence
As noted, we also issued an order to show cause on Lawley’s claim that the
prosecution failed to disclose material exculpatory evidence in its possession that
supported Lawley’s assertion of innocence.
Before and during trial, due process requires the prosecution to disclose to
the defense evidence that is material and exculpatory. (Kyles v. Whitley (1995)
19

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514 U.S. 419, 432-433, 437-438; United States v. Bagley (1985) 473 U.S. 667,
674-678; Brady v. Maryland (1963) 373 U.S. 83, 86-87.) This obligation
continues after trial: “ ‘[Even] after a conviction[,] the prosecutor . . . is bound by
the ethics of his office to inform the appropriate authority of . . . information that
casts doubt upon the correctness of the conviction.’ ” (People v. Gonzalez, supra,
51 Cal.3d at p. 1261, quoting Imbler v. Pachtman (1976) 424 U.S. 409, 427,
fn. 25; see also Rules Prof. Conduct of State Bar, rule 5-220 [duty not to suppress
evidence]; ABA Model Rules Prof. Conduct, rule 3.8 [“The prosecutor in a
criminal case shall: [¶] . . . [¶] (d) make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense”].)
In his petition, Lawley contended the prosecution breached this duty by
failing to disclose a posttrial 1996 letter from Seabourn to Prosecutor James C.
Brazelton that asserted Lawley’s innocence, as well as a Department of
Corrections report summarizing Seabourn’s 1997 debriefing when he
disassociated himself from the Aryan Brotherhood, and Seabourn’s handwritten
account of his Aryan Brotherhood participation.
In the course of the evidentiary proceeding following our issuance of the
order to show cause, the People disclosed to Lawley the 1996 Seabourn-Brazelton
letter. It was admitted into evidence at the evidentiary hearing, the referee
considered it in reaching his conclusions,11 and Lawley thus had the full benefit of

11
The referee concluded the letter “contains very little information that is
helpful to this referee.” Seabourn wrote in part: “I hope you don’t allow Dennis
Lawley to die. Well, actually he’s already dead, mentally. If I could, I’d take his
place. I know you don’t have much pity for criminals after seeing all the [s—t]
you see daily but, I see the same thing and I know if I still have compassion for
people you do also. This guy isn’t guilty of nothing Jim, except desperately

(footnote continued on next page)
20

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it in attempting to demonstrate actual innocence. The People also disclosed the
Department of Corrections report and Seabourn’s written account. Again, the
referee considered these documents, and Lawley had their full benefit in arguing
his actual innocence.12 Given the prosecution’s disclosure of these materials and
Lawley’s use of them to argue actual innocence, Lawley has received all the relief
on this claim to which he might be entitled.
While not contending the prosecution’s nondisclosure of these particular
documents alone requires a further remedy, Lawley asserts two other bases for
relief. First, he argues some relief is warranted because the Department of
Corrections has, he contends, failed to make an exhaustive search of its debriefing
files for any documents that might corroborate (1) Seabourn’s association with the
Aryan Brotherhood, and (2) Lawley’s contention that Stewart was targeted for
death by the Aryan Brotherhood.
We are not persuaded. No one disputes that Seabourn was associated with
the Aryan Brotherhood at one point. As mentioned, the referee noted there was

(footnote continued from previous page)
wanting to have friends, no matter what the cost.” Otherwise, the referee
concluded, the letter contained no relevant information pertaining to Lawley’s
guilt or innocence. Lawley does not challenge this conclusion, which is supported
by our own review of the letter.
12
As with the 1996 Seabourn-Brazelton letter, the referee found the
debriefing documents shed little light on Lawley’s claim of innocence. The 1997
Department of Corrections debriefing summary indicates Seabourn refused to
discuss the Stewart murder because he was still hoping for a new trial, and the
referee concluded nothing in Seabourn’s handwritten account indicated Lawley
was innocent or otherwise would assist him. Having reviewed the summary and
handwritten account, we agree, with one exception. Seabourn’s handwritten
account does assert: “This D.A. who prosecuted me knows this guy Dennis
Lawley is innocent but he sent him to Death Roll [sic] anyway.” It thus sheds no
more light on Stewart’s murder than the 1996 Seabourn-Brazelton letter.
21

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“plenty of evidence that the AB might have been involved in the murder of Kenny
Stewart.” Lawley called and presented evidence from many of the witnesses
whose written files he now demands — David Hager, Wayne Richardson, Jesse
Brun, Lee Max Barnett. Additional cumulative evidence culled from Department
of Corrections files would not materially alter the referee’s conclusion, supported
by substantial evidence, that (1) Seabourn was not wholly credible, and (2) the
Aryan Brotherhood’s wanting Stewart dead was not inconsistent with Seabourn’s
taking money from Lawley to kill Stewart.
Second, Lawley argues the prosecution engaged in misconduct by first
concealing evidence of Aryan Brotherhood involvement at the time of trial and
then arguing to the jury: “Now, nobody else in this case had a reason to kill
Kenneth Stewart.” We rejected this claim of prosecutorial misconduct in
Lawley’s direct appeal. (Lawley, supra, 27 Cal.4th at p. 156.) It is thus barred as
repetitive. (In re Harris (1993) 5 Cal.4th 813, 824-829; In re Waltreus (1965)
5 Cal.4th 218, 225.) Accordingly, it was not within the scope of our order to show
cause or our direction to the referee to take evidence and issue findings.
To the extent Lawley seeks to avoid this bar and have us revisit the issue by
suggesting now that the prosecution violated Brady v. Maryland, supra, 373 U.S.
83, by failing to disclose evidence of Aryan Brotherhood involvement at the time
of trial, he may not do so. Lawley’s petition for writ of habeas corpus does not
allege there was any such Brady violation at trial. As we have explained: “When
an order to show cause does issue, it is limited to the claims raised in the petition
and the factual bases for those claims alleged in the petition. . . . While the
traverse may allege additional facts in support of the claim on which an order to
show cause has issued, attempts to introduce additional claims or wholly different
factual bases for those claims in a traverse do not expand the scope of the
proceeding[,] which is limited to the claims [that] the court initially determined
22

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stated a prima facie case for relief.” (In re Clark, supra, 5 Cal.4th at p. 781, fn.
16.)13 What Lawley could not do in his 2002 traverse, he cannot do at this even
later stage: he cannot through argument in a postreference brief expand his claims
beyond those alleged in the petition and made the basis of this court’s order to
show cause.
III. Fairness of the Evidentiary Hearing
Lawley closes by objecting that he was denied a fair evidentiary hearing.
He recounts the People’s objections to his issuance of subpoenas duces tecum and
the referee’s reluctance to compel discovery. He further recounts numerous
objections to questions during the evidentiary hearing itself, on hearsay and other
grounds.
What Lawley fails to do is identify error in any of the referee’s rulings. In
our order appointing a referee, we directed that “[a]ny requests for discovery in
this matter, including but not limited to any motion by petitioner under
Pennsylvania v. Ritchie (1987) 480 U.S. 39, should be addressed to the referee.
(See In re Scott (2003) 29 Cal.4th 783, 814.)” In so doing, we delegated to the
referee our “power and authority to require and compel the attendance of
witnesses, by process of subpoena and attachment, and to do and perform all other
acts and things necessary to a full and fair hearing and determination of the case”
(§ 1484), and in particular the power to ensure orderly discovery in this matter. In
contravention of both our order and a subsequent order by the referee, Lawley
sought discovery directly from third parties and law enforcement officials. While
his attempts at obtaining discovery in this fashion and through the referee were in

13
Thus, while Lawley complains about the People’s insistence during the
evidentiary hearing that Brady claims were not at issue, the People were right:
they were not.
23

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some cases delayed and in some cases ultimately fruitless, Lawley does not
articulate how the referee erred, if at all, in managing discovery in the fashion that
he did. The mere fact Lawley may have been delayed in receiving, or even
denied, discovery he sought does not alone demonstrate error. There is no federal
right, constitutional or otherwise, to discovery in a habeas corpus proceeding.
(Harris v. Nelson (1969) 394 U.S. 286, 295; Herrera v. Collins, supra, 506 U.S. at
p. 444 (dis. opn. of Blackmun, J.) [“A prisoner raising an actual-innocence claim
in a federal habeas petition is not entitled to discovery as a matter of right”].) Nor
have we recognized any state right to unfettered discovery, instead allowing trial
courts and referees to manage discovery on a case-by-case basis. (In re Scott, at
pp. 813-814; People v. Gonzalez, supra, 51 Cal.3d at pp. 1258-1261.)
Similarly, while complaining that numerous objections on hearsay grounds
were sustained, Lawley does not expressly contend the referee erred in so ruling.
Alternatively, if his recitation of these objections and rulings may be interpreted as
asserting error, he does not offer any legal argument for why any of the testimony
he sought was not inadmissible on hearsay and other grounds.
Lawley has not shown he was denied a fair opportunity at the evidentiary
hearing to establish his innocence.
24

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DISPOSITION
Our order to show cause was limited to a claim of actual innocence and the
related claim that the prosecution violated a duty to disclose exculpatory evidence.
Lawley has not established entitlement to relief on either claim. Lawley’s other
claims and his petition for writ of habeas corpus will be resolved by separate
order, as is our practice. (See, e.g., In re Thomas, supra, 37 Cal.4th at p. 1277.)
The order to show cause is discharged.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

25

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Lawley
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S089463
Date Filed: March 24, 2008
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Scott F. Kauffman and Bicka Ann Barlow, under appointments by the Supreme Court, for Petitioner
Dennis Lawley.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, David P. Druliner and Robert R. Anderson,
Chief Assistant Attorneys General, Mary Jo Graves, Assistant Attorney General, Ward A. Campbell,
Stephen G. Herndon, Eric L. Christoffersen, Patrick J. Whalen, Michael P. Farrell and David Andrew
Eldridge, Deputy Attorney General, for Respondent State of California.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott F. Kauffman
California Appellate Project
101 Second Street, Suite 600
San Francisco, CA 94105
(415) 495-0500

Bicka Ann Barlow
555 7th Street, 2d Floor
San Francisco, CA 94103
(415) 575-8830

David Andrew Eldridge
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-6291

---

Original proceeding. In this case, which is related to the automatic appeal in People v. Lawley (2002) 27 Cal.4th 102, the court issuded an order to show cause limited to claims that the petitioner is actually innocent and that the prosecution failed to disclose material exculpatory evidence.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Mon, 03/24/2008	42 Cal.4th 1231 original opinion	S089463	Habeas (AA Concurrent)	closed; remittitur issued	PEOPLE v. LAWLEY (DENNIS) (S014497) LAWLEY (DENNIS) ON H.C. (S163136) LAWLEY (DENNIS HAROLD) ON H.C. (S177188)

Disposition
Mar 24 2008	Opinion: OSC discharged

Dockets
Jun 26 2000	Petition for writ of (AA-related) Habeas Corpus filed   (230 pages)
Jun 26 2000	Filed:   Exhibit in support of Petn (1 Volume)
Jun 28 2000	Informal response requested   Letter sent to respondent requesting informal response (Rule 60); Due 7/28/2000. Any reply due within 30 days of service and filing of response.
Aug 1 2000	Application for Extension of Time filed   to file informal response.
Aug 8 2000	Extension of Time application Granted   To 9/26/2000 to file informal response.
Sep 20 2000	Application for Extension of Time filed   To file informal response. (2nd request)
Sep 28 2000	Extension of Time application Granted   To 11/27/2000 to file informal response.
Nov 17 2000	Motion for access to sealed record filed   Respondent's request for disclosure of records (Penal Code 987.9)
Nov 21 2000	Application for Extension of Time filed   To file informal response. (3rd request)
Nov 30 2000	Extension of Time application Granted   To 1/26/2001 to file informal response.
Nov 30 2000	Opposition filed   By applt to request for sealed records pursuant to Penal Code Section 987.9 (d).
Dec 7 2000	Filed:   Supplemental proof of service in support of opposition to request sealed records 987.9 PC.
Dec 15 2000	Filed:   resp's reply to opposition to request for disclosure of records.
Jan 4 2001	Filed:   Supplemental exhibit in support of petn. (19 pages)
Jan 26 2001	Application for Extension of Time filed   To file informal response. (4th request)
Jan 31 2001	Informal Response filed (AA)   resp. (58 pages)
Feb 5 2001	Extension of Time application Granted   To 2/13/2001 to file informal response.
Feb 21 2001	Application for Extension of Time filed   To file reply to informal response. (1st request)
Feb 26 2001	Extension of Time application Granted   To 5/1/2001 to file reply to informal response.
Mar 28 2001	Order filed:   In response to the "Request for Disclosure of Records (Penal Code section 987.9)," filed in this court by the Attorney General on November 17, 2000, defendant Dennis Harold Lawley is directed to inform this court, no later than 30 days from the date of this order, whether any of the records, or portions thereof, sealed by the trial court pursuant to Penal Code section 987.9, are subject to redaction before being revealed to the Attorney General. (See Pen. Code, section 987.9, subd. (d) ["the funding records, or relevant portions thereof, shall be provided to the Attorney General at the Attorney General's request"].)
Apr 27 2001	Application for Extension of Time filed   To file reply to informal response. (2nd request)
May 2 2001	Filed:   Defendant's (Petitioner's) response to the court's order of 3/28/2001.
May 3 2001	Extension of Time application Granted   To 7/2/2001 to file reply to informal response.
Jun 13 2001	Motion for access to sealed record granted   The "Request for Disclosure of Records (Penal Code section 987.9)," filed in this court by the Attorney General on 11-17-2000, is granted.
Jun 28 2001	Application for Extension of Time filed   to file reply to informal response
Jul 2 2001	Extension of Time application Granted   to 8-2-2001 to file reply to informal response. No further extensions of time will be contemplated.
Aug 1 2001	Application for Extension of Time filed   To file reply to informal response. (3rd request)
Aug 10 2001	Extension of Time application Granted   To 9/4/2001 to file reply to informal response. No further extensions of time will be granted.
Sep 4 2001	Reply to Informal Response filed (AA)   23 pp.
Dec 28 2001	Filed:   Declaration of Robert Chase, Esq. Exhibit no. 16. (originally designated as exhibit no. 29)
Feb 27 2002	Order to show cause issued   The Director of Corrections is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on the grounds that petitioner is actually innocent, as alleged in Claim I, and that the prosecution failed to disclose material exculpatory evidence (i.e., the alleged portion of Brian Seabourn's correctional file containing his statements exonerating petitioner and Seabourn's alleged letter to the trial prosecutor exonerating petitioner), as alleged in Claim II. The return shall be filed on or before March 29, 2001. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, J.J.
Mar 20 2002	Request for extension of time filed   To file return to OSC. (1st request)
Apr 11 2002	Extension of time granted   To 4/29/2002 to file return to OSC.
Apr 25 2002	Written return filed   by resp. (13 pp. - excluding exhibits)
May 3 2002	Received letter from:   Resp., dated 5/3/2002, re admissibility of photocopies as exhibits.
May 20 2002	Request for extension of time filed   To file traverse. (1st request)
May 22 2002	Filed:   Amended request for extension of time to file traverse.
May 23 2002	Extension of time granted   To 6/27/2002 to file traverse to OSC.
May 28 2002	Filed:   Suppl. declaration of service to file traverse.
Jun 4 2002	Note:   Habeas Funds Request filed in AA. S014497 (Confidential).
Jun 4 2002	Filed:   petnr's application for stay of hearing to set execution date until final disposition of habeas corpus petition and to rescind transportation order. (hearing: 6-20-2002)
Jun 14 2002	Order filed   Appellant's "Application for Stay of Hearing to Set Execution Date Until Final Disposition of Petition for Habeas Corpus and to Rescind Transportation Order" is denied as moot.
Jun 27 2002	Request for extension of time filed   To file traverse. (2nd request)
Jul 2 2002	Filed:   Suppl. declaration in support of request for extension of time.
Jul 8 2002	Extension of time granted   To 7/26/2002 to file traverse. The court anticipates that after that date, only three further extensions totaling 92 additional days will be granted. Counsel is ordered to inform his assisting entity of this schedule, and to take all steps necessary to meet it.
Jul 31 2002	Request for extension of time filed   To file traverse. (3rd request)
Aug 1 2002	Extension of time granted   To 8/26/2002 to file traverse. The court anticipates that after that date, only two further extensions totaling 61 additional days will be granted. Counsel is ordered to inform his assisting entity of this schedule, and to take all steps necessary to meet it.
Aug 30 2002	Request for extension of time filed   to file traverse. (4th request)
Sep 5 2002	Extension of time granted   To 9/25/2002 to file traverse. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to tkae all steps necessary to meet this schedule.
Oct 7 2002	Request for extension of time filed   To file traverse. (5th request)
Oct 15 2002	Extension of time granted   To 10/28/2002 to file the traverse. Extension is based upon counsel Scott F. Kauffman's representation that he anticipates filing that document by 10/28/2002. After that date, no further extension will be granted.
Oct 28 2002	Traverse to return filed   by attorney Scott Kauffman. (25 pp. - excluding exhibits)
Feb 19 2003	Reference hearing ordered   THE COURT: Based on the record in this matter and good cause appearing: The Honorable David G. Vander Wall, Presiding Judge of the Stanislaus County Superior Court, shall select a Judge of the Stanislaus County Superior Court to sit as a referee in this proceeding and shall promptly notify this court of the referee selected. After appointment by this court, the referee shall take evidence and make findings of fact on the following questions regarding the case of People v. Dennis Harold Lawley (Stanislaus County Superior Court No. 243108; Judge Eugene M. Azevedo): 1. Is petitioner factually innocent because Brian Seabourn killed Kenneth Stewart, not at petitioner's request, but solely for or at the direction of the Aryan Brotherhood or other persons? 2. Did Brian Seabourn communicate with District Attorney James C. Brazelton, by letter or other means, after petitioner's trial? If so, what was the substance of the communication? 3. Does the Department of Corrections, or any of its employees, agents or subordinate or related entities, possess information exonerating petitioner of complicity in the killing of Stewart? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in this matter, including but not limited to any motion by petitioner under Pennsylvania v. Ritchie (1987) 480 U.S. 39, should be addressed to the referee. (See In re Scott (2003) 29 Cal.4th 783, 814.)
Mar 26 2003	Referee appointed   THE COURT: Based on the record in this matter and good cause appearing: The Honorable Roger M. Beauchesne, Judge of the Stanislaus County Superior Court, is appointed to sit as a referee in this proceeding. He shall take evidence and make findings of fact on the following questions regarding the case of People v. Dennis Harold Lawley (Stanislaus County Superior Court No. 243108; Judge Eugene Acevedo): 1. Is petitioner factually innocent because Brian Seabourn killed Kenneth Stewart, not at petitioner's request, but solely for or at the direction of the Aryan Brotherhood or other persons? 2. Did Brian Seabourn communicate with District Attorney James C. Brazelton, by letter or other means, after petitioner's trial? If so, what was the substance of the communication? 3. Does the Department of Corrections, or any of its employees, agents or subordinate or related entities, possess information exonerating petitioner of complicity in the killing of Stewart? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in this matter, including but not limited to any motion by petitioner under Pennsylvania v. Ritchie (1987) 480 U.S. 39, should be addressed to the referee. (See In re Scott (2003) 29 Cal.4th 783, 814.)
Apr 2 2003	Note:   Motion for appointment of associate counsel for evidentiary hearing filed in AA no. S014497.
Apr 14 2003	Received:   copy of minute order from Stanislaus County Superior Court, dated 4-8-2003; Judge Roger M. Beauchesne has recused himself.
Apr 21 2003	Received letter from:   Stanislaus Co. Superior Court Presiding Judge Vander Wall, dated 4-16-2003, regarding selection of new referee.
Apr 30 2003	Referee appointed   THE COURT: Based on the record in this matter and good cause appearing: The appointment of the Honorable Roger E. Beauchesne, Judge of the Stanislaus County Superior Court, as referee, filed March 26, 2003, is hereby vacated. The Honorable John E. Griffin, Judge of the Stanislaus County Superior Court, is appointed to sit as a referee in this proceeding. He shall take evidence and make findings of fact on the following questions regarding the case of People v. Dennis Harold Lawley (Stanislaus County Superior Court No. 243108; Judge Eugene Acevedo): 1. Is petitioner factually innocent because Brian Seabourn killed Kenneth Stewart, not at petitioner's request, but solely for or at the direction of the Aryan Brotherhood or other persons? 2. Did Brian Seabourn communicate with District Attorney James C. Brazelton, by letter or other means, after petitioner's trial? If so, what was the substance of the communication? 3. Does the Department of Corrections, or any of its employees, agents or subordinate or related entities, possess information exonerating petitioner of complicity in the killing of Stewart? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in this matter, including but not limited to any motion by petitioner under Pennsylvania v. Ritchie (1987) 480 U.S. 39, should be addressed to the referee. (See In re Scott (2003) 29 Cal.4th 783, 814.)
May 8 2003	Change of Address filed for:   associate counsel for evidentiary hearing Bicka A. Barlow.
May 23 2003	Motion filed (in AA proceeding)   by petitioner to disqualify referee (Hon. John E. Griffin) and reassign reference hearing.
Jun 18 2003	Order filed   "Motion to Disqualify Referee and Reassign Reference Hearing" filed on May 23, 2003, is denied.
Jul 1 2003	Motion filed   by petitioner to deem the Hon. John E. Griffin disqualified by operation of law (CCP sec.170.1(6) & 170.3(c))
Jul 14 2003	Filed:   response to petitioner's "Motion to Deem the Hon. John E. Griffin Disqualified by Operation of Law."
Jul 22 2003	Filed:   reply to response to petitioner's motion to deem Judge Griffin disqualified.
Sep 24 2003	Motion denied   Petitioner's "Motion to Deem the Hon. John E. Griffin Disqualified by Operation of Law," filed on July 1, 2003, is denied on the merits and for lack of proper service. (See Code Civ. Proc., section 170.3, subd. (c)(1).)
Dec 11 2003	Letter sent to:   referee requesting status report.
Feb 17 2004	Letter sent to:   referee requesting status report.
Jun 24 2004	Letter sent to:   referee requesting status report.
Aug 30 2004	Letter sent to:   referee, Judge John Griffin, requesting an estimate as to when his referee's report will be completed and filed with this court.
Oct 18 2004	Received:   letter from Judge Griffin, dated 10-13-2004.
Jan 24 2005	Referee's report filed
Jan 24 2005	Letter sent to:   counsel inviting the parties to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 2-23-2005. Responses, if any, due 30 days thereafer.
Feb 23 2005	Exceptions/briefing filed re referee's report   Petitioner's brief on the merits and exceptions to the report of the referee. (151 pp. excluding appendix)
Mar 1 2005	Change of contact information filed for:   for attorney Scott F. Kauffman.
Mar 24 2005	Response brief re referee's report (awaiting more)   respondent's response to petitioner's brief on the merits and exceptions to the report of the referee. (23 pp.; 5831 words - excluding attached exhibits)
Mar 28 2005	Motion filed (AA)   Petitioner's motion for summary reversal granting the writ of habeas corpus.
May 13 2005	Filed:   record from evidentiary hearing. [7 vols. of reporter's transcript (1,779 pp.), including pages under seal; court documents and exhibits] NOTE: some exhibits are under seal.
Nov 16 2005	Change of contact information filed for:   attorney Scott F. Kauffman.
Oct 26 2007	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 2008, in San Francisco.
Nov 28 2007	Note:   confidential order filed in related automatic appeal, no. S014497, regarding request for funds.
Nov 29 2007	Motion denied   Petitioner's motion for summary reversal granting the writ of habeas corpus, filed on March 28, 2005, is denied.
Dec 4 2007	Case ordered on calendar   Wednesday, January 9, 2008, at 1:30 p.m., in San Francisco
Dec 14 2007	Motion filed (AA)   by petitioner to expand the record of the evidentiary hearing.
Dec 17 2007	Letter sent to:   counsel regarding petitioner's motion to expand the record of the evidentiary hearing. A response must be served and filed on or before Friday, December 21, 2007. The response must be served and filed electronically and by facsimile, with the original following via overnight delivery. Any reply by petitioner must be served and filed on Monday, December 24, 2007. The reply may be served and filed electronically and by facsimile, with the original following via overnight delivery.
Dec 18 2007	Received:   appearance sheet from Scott Kauffman, indicating 30 minutes for oral argument for petitioner.
Dec 18 2007	Received:   appearance sheet from Deputy Attorney General David A. Eldridge, indicating 30 minutes for oral argument for respondent.
Dec 18 2007	Note: Mail returned and re-sent
Dec 20 2007	Note:   confidential request for funds filed in related automatic appeal, no. S014497.
Dec 21 2007	Opposition filed   by respondent to petitioner's Motion to Expand the Record of the Evidentiary Hearing. (filed electronically)
Dec 24 2007	Filed:   petitioner's response (reply) to opposition to motion to expand the record. (filed electronically)
Jan 2 2008	Received:   errata letter from petitioner, dated January 2, 2008, regarding petitioner's response to respondent's opposition to expansion of the record.
Jan 2 2008	Filed letter from:   Scott F. Kauffman, counsel for petitioner requesting to divide oral argument time by sharing 10 minutes with co-counsel Bicka Barlow.
Jan 2 2008	Order filed   The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to cocounsel Bicka Ann Barlow 10 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Jan 3 2008	Order filed   The "Motion to Expand the Record of the Evidentiary Hearing," filed on December 14, 2007, is denied without prejudice to the filing of a new habeas corpus petition. Werdegar, J., was absent and did not participate.
Jan 7 2008	Motion filed (AA)   by petitioner. "Emergency Motion to Postpone Submission of the Case and to Remand for Further Evidentiary Hearing."
Jan 8 2008	Order filed   Petitioner's "Emergency Motion to Postpone Submission of the Case and to Remand for Further Evidentiary Hearing," filed on January 7, 2008, is denied without prejudice to the filing of a new habeas corpus petition.
Jan 9 2008	Cause argued and submitted
Jan 9 2008	Filed:   supplemental declaration of service for emergency motion filed January 7, 2008.
Mar 21 2008	Notice of forthcoming opinion posted
Mar 24 2008	Opinion filed: OSC discharged   Our order to show cause was limited to a claim of actual innocence and the related claim that the prosecution violated a duty to disclose exculpatory evidence. Lawley has not established entitlement to relief on either claim. Lawley's other claims and his petition for writ of habeas corpus will resolved by separate order, as is our practice. (See, e.g., In re Thomas, supra, 37 Cal.4th at p. 1277.) The order to show cause is discharged. Opinion by Werdergar, J. --- joined by George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Apr 8 2008	Rehearing petition filed   for petitioner by Scott F. Kaufmann and Bicka A. Barlow. (3,239 words; 18 pp.)
Apr 11 2008	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including June 20, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
May 14 2008	Rehearing denied   The petition for rehearing is denied.
Jun 11 2008	Order filed: remaining habeas corpus issues denied   The petition for writ of habeas corpus, filed June 26, 2000, is denied as to all claims except claims I and II, which were resolved via a separate opinion. (See In re Lawley (2008) 42 Cal.4th 1231.) Claims III through XI and XIII through XVI, including all subclaims, are denied on the merits. Claim XII is denied without prejudice as premature. Claim III is denied on the further ground that it could have been, but was not, raised on appeal. (See In re Harris (1993) 5 Cal.4th 813, 825, fn. 3; In re Dixon (1953) 41 Cal.2d 756.)

Briefs
Apr 25 2002	Written return filed
Oct 28 2002	Traverse to return filed

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