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Kell v. Crowther

United States District Court, D. Utah

November 16, 2017

TROY MICHAEL KELL, Plaintiff,
v.
SCOTT CROWTHER, WARDEN, UTAH STATE PRISON; Defendant.

          MEMORANDUM DECISION AND ORDER

          CLARK WADDOUPS, UNITED STATES DISTRICT COURT JUDGE

         Before 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.

         I.PROCEDURAL BACKGROUND

         Kell 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.)[1]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 2008).

         On 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.)

         The 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.

         II. ANALYSIS

         District 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).

         A. Good Cause

         The 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).

         Since 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.

         There 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 demanding.

         In two 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.

         The 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 ...


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