United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
WADDOUPS, UNITED STATES DISTRICT COURT JUDGE
the court is Petitioner Troy Michael Kell's Motion to
Stay Federal Habeas Proceedings pursuant to Rhines v.
Weber, 544 U.S. 269, 276 (2005). (ECF No. 245.)
Respondent (the State) filed its opposition. (ECF No. 247.)
Kell addressed the State's objections in his reply. (ECF.
254.) Kell moves this court to stay his federal habeas
proceedings while he returns to state court to attempt to
exhaust previously unexhausted claims, specifically Claims
3(D) and 3(F) from his amended petition. The State opposes
Kell's motion, arguing that he has not shown good cause
for failing to exhaust his claims, the claims lack any
potential merit, and the motion is dilatory.
was serving a life-without-parole sentence for murder when he
stabbed fellow inmate Lonnie Blackmon to death. On August 1,
1996, a jury convicted Kell and sentenced him to death.
See generally State v. Kell, 61 P.3d 1019 (Utah
2002). On November 1, 2002, the Utah Supreme Court affirmed
Kell's conviction and sentence. (Id.) On August
1, 2005, Kell's post-conviction counsel filed a 21-page
Amended Petition for Post-Conviction Relief that contained
only one case citation, and appended no declarations or other
new evidence. (PCR 252-72.)The state moved to dismiss, (PCR
290-93), and the court granted the motion. The Utah Supreme
Court affirmed. Kell v. State, 194 P.3d 913 (Utah
January 13, 2009, Mr. Kell filed a pro se motion for
relief pursuant to Utah Rule 60(b) in the state court,
alleging that he had received ineffective assistance of
counsel in his post-conviction proceedings because counsel
had failed to investigate and failed to raise many
meritorious claims. (PCR 684-51.) Four months later federal
habeas counsel filed an Initial Petition in Kell's
federal habeas case. (ECF No. 36.) On June 12, 2009, counsel
filed a motion to stay federal habeas proceedings, so that he
could resolve previously-pending state court litigation. (ECF
Nos. 40, 41.) In its order on the motion to stay, the court
noted that Kell had filed a “protective federal habeas
petition, ” despite still-pending state court
litigation, in order to ensure compliance with the AEDPA
statute of limitations. (ECF No. 51.)
Utah Supreme Court denied the Rule 60(b) appeal. Rehearing
was denied and the case was remitted on September 24, 2012.
Kell filed his amended petition in this court on January 14,
2013. (ECF No. 94.) His Amended Petition included, for the
first time, Claims 3(D) and 3(F), both of which allege
extraneous influence on jurors. (ECF No. 94 at 33-40.) These
claims were supported by declarations from jurors that were
signed in May 2012, after the Utah Supreme Court had issued
its opinion denying Mr. Kell's Rule 60(b) motion.
(See ECF No. 94, exhibits 1, 3, 4, 5, 10, and 11.)
Kell asserts that his Amended Petition in this court was his
first available opportunity to raise these claims after the
denial of his Rule 60(b) motion in state court.
courts have inherent authority to issue stays, and AEDPA does
not deprive courts of that authority. But it does limit their
discretion to exercise that authority because a stay pursuant
to Rhines creates tension between AEDPA's goals
of federalism and comity and its goal of streamlining the
federal habeas process. As a result any stay under
Rhines cannot be indefinite and must meet certain
criteria. The petitioner must show that (1) good cause exists
for his failure to exhaust, (2) his unexhausted claims are
potentially meritorious, and (3) he has not engaged in
abusive litigation tactics or intentional delay.
Rhines, 544 U.S. at 276-78. “Petitioner, as
movant, has the burden to show he is entitled to a stay under
the Rhines factors.” Carter v. Friel,
415 F.Supp.2d 1314, 1317 (D. Utah 2006).
United States Supreme Court in Rhines did not define
with any precision what constitutes “good cause.”
One month after the Rhines decision, however, the
Court stated that “[a] petitioner's reasonable
confusion about whether a state filing would be timely will
ordinarily constitute ‘good cause' to excuse his
failure to exhaust.” Pace v. DiGuglielmo, 544
U.S. 408, 416-17 (2005).
the Pace decision, district courts have reached
different conclusions about whether good cause in the
Rhines context is akin to good cause to excuse
procedural default in federal court (which is a high standard
because it allows the district court to consider the merits
of a defaulted claim) or a more expansive and equitable
reading of good cause (which is a lower standard that allows
the claim to return to the state court for merits review).
Compare Hernandez v. Sullivan, 397 F.Supp.2d 1205,
1207 (C.D. Cal. 2005) (courts should look to procedural
default law to determine cause), with Rhines v.
Weber, 408 F.Supp.2d 844, 848-49 (D.S.D. 2005)
(Rhines II) (rejecting procedural default analysis
for cause in exhaustion context). Based in part on those
different standards, some district courts have found that
ineffective assistance of post-conviction counsel constitutes
good cause for failure to exhaust. See, e.g., Vasquez v.
Parrott, 397 F.Supp.2d 452, 464-65 (S.D.N.Y. 2005);
See also Rhines II.
is no Tenth Circuit Court of Appeals decision that explains
what constitutes “good cause” in the context of a
Rhines motion. The only circuit court to directly
address whether the good cause standard should be high or low
is the Ninth Circuit. In Blake v. Baker, 745 F.3d
977 (9th Cir. 2014), the court followed
Pace and Rhines II to find that good cause
for a Rhines stay cannot be any more demanding than
a showing of cause for procedural default under Martinez
v. Ryan, 566 U.S. 1 (2012), and, in fact, may be less
recent cases in the United States District Court for the
District of Utah, two district court judges clarified
“good cause” in the context of a Rhines
motion. Lafferty v. Crowther, No. 2:07-CV-322, ECF
No. 379 (D. Utah Oct. 30, 2015); Archuleta v.
Crowther, No. 2:07-CV-630, ECF No. 107 (D. Utah Nov. 12,
2014). Both courts found the analysis of Blake and
Rhines II persuasive because in the Rhines
context a petitioner is returning to state court to allow the
state court to consider his claims. The Lafferty and
Archuleta courts' reasoning reflects the
important distinction between the “good cause”
necessary to excuse the default of state claims, allowing for
federal review of a claim, and the “good
cause” necessary to excuse the default of state claims,
allowing a petitioner to return to state court in
order to afford the state court the first opportunity to
consider the claim. “Good cause” in the context
of a stay and abeyance procedure is distinct in that the
federal court is not preventing the state court from
reviewing a claim, rather it is deciding whether a stay is
permissible so that the state court can first review the
claims before it is presented in federal court.
Blake court held that ineffective assistance of
state post-conviction counsel can establish good cause for
failure to exhaust. “While a bald assertion [of
ineffective assistance of post-conviction counsel] cannot
amount to a showing of good cause, a reasonable excuse,
supported by the evidence to justify a petitioner's
failure to exhaust, will.” Blake, 745 F.3d at
982. The judges in Archuleta and Lafferty
agreed with the Blake court that “ineffective
assistance of post-conviction counsel may constitute good
cause for failure to ...