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Home v. Crowther

United States District Court, D. Utah

December 13, 2017

SCOTT CROWTHER, Warden, Utah State Prison, Respondent.


          Julie A. Robinson United States District Judge

         Before this court is Mr. Honie's motion pursuant to Rhines v. Weber, 544 U.S. 269 (2005), requesting that this court stay his federal case and hold it in abeyance while he exhausts certain of his claims in state court proceedings. ECF No. 107. Mr. Honie seeks to exhaust in state court the following three unexhausted claims: (1) trial counsel's failure to object to the admission of several allegedly prejudicial photographs (claim eight), (2) trial counsel's failure to object to the State's use of allegedly prejudicial victim impact evidence (claim nine), and (3) trial counsel's failure to preserve, and appellate counsel's failure to adequately brief Mr. Honie's appellate claims (claim eleven).[1] After careful consideration of the briefing (ECF Nos, 107, 111, and 119) and the applicable law, the court denies Honie's motion for the following reasons.


         On July 9, 1998, Mr. Honie broke into Claudia Benn's home and brutally murdered her. A jury convicted Honie of aggravated murder. Honie waived a sentencing jury, and the trial court sentenced him to death. See generally Honie v. State, 342 P.3d 182 (Utah 2014); State v. Honie, 57 P.3d 977 (Utah 2002), cert, denied Honie v. Utah, 537 U.S. 863 (Oct. 7, 2002).

         Honie sought state post-conviction relief. He filed an amended petition in 2003. PCR 19-92.[2] The state district court granted the State summary judgment on most of the petition four years later. PCR 965-1070. After discovery on the remaining claims, the State again moved for summary judgment on the outstanding claims. PCR 1266-1362. Three and a half years later, Honie responded to the State's second summary judgment motion. PCR 3206-78. In 2011, the state district court granted summary judgment in full and denied Honie post-conviction relief. PCR 3315-48. Honie appealed that ruling with the assistance of his current federal defenders. PCR 3349-51; Docket case no. 20110620-SC.

         While that appeal was pending, Honie filed a motion to set aside the judgment under Rule 60(b), Utah Rules of Civil Procedure. PCR 3320-3556. After full briefing, the district court denied the motion. ECF No. 70-2, ex. B. Honie appealed that ruling as well, again with the assistance of his current federal defenders. Docket case no. 20120220-SC. The Utah Supreme Court consolidated both appeals, and on May 30, 2014, the court affirmed. Honie v. State, 342 P.3d 182 (Utah 2014).

         Honie filed his federal petition on May 18, 2015. ECF No. 47. After the petition was fully briefed, this court ruled on the procedural status of the claims in the petition, finding that 8, 9, 10, 11 and 13 were not exhausted because the Utah Supreme Court had not reviewed them. Honie then filed this Rhines motion asking for a stay and abeyance to exhaust only claims 8, 9, and 11. ECF No. 107.


         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. Intentionally Dilatory Litigation Tactics

         The court will first address the third Rhines requirement, which is that the petitioner show that he has not engaged in "abusive litigation tactics or intentional delay." Rhines, 544 U.S. at 277-78. This requirement recognizes that "capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits, petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal habeas review." Id. The State argues that Home's Rhines motion is dilatory. According to the State, Honie's decision to wait nearly fourteen years after raising claims in state court, abandoning them on appeal, then seeking a second round of state review to relitigate the same claims "flouts the AEDPA's purpose of 'reduc[ing] delays in the execution of . . . capital cases.'" Rhines, 544 U.S. at 276 (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003). Although Honie notes that he has simply complied with the requirements of the case management schedule as stipulated to by the parties and ordered by the court, the State argues that the case management schedule did not prohibit Honie from requesting a Rhines stay earlier.

         Honie argues that his initial post-conviction counsel was ineffective for failing to adequately raise claims eight, nine and eleven when he raised all three of them in his state postconviction petition as one-line unsupported general assertions. PCR 65-67. The State District Court agreed with the State that Honie had alleged insufficient facts to support his claims and granted the State's motion to dismiss based on post-conviction counsel's failure to comply with the Utah Rules of Civil Procedure 65C(c)(3) and (d)(1). PCR 989. Honie argues that it would have been improper for him to raise claims eight, nine, and eleven on appeal to the Utah Supreme Court after initial post-conviction counsel failed to adequately preserve these claims. See Utah R. Prof I conduct 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law."). Honie asserts that he had no choice but to omit these unpreserved claims in his appeal to the Utah Supreme Court of the denial of his state post-conviction petition, and to raise them properly in his federal petition.

         The State argues that Honie should have filed a second state post-conviction petition in order to exhaust claims eight, nine and eleven prior to now. However, exhaustion is an affirmative defense that must be raised by the State. So until the State raised the defense that these claims are unexhausted and the court ruled that the claims were unexhausted, Mr. Honie had no reason to seek leave to return to state court to exhaust them. This court ruled on March 20, 2017 that these claims are not exhausted because they were not reviewed by the highest state court. Honie filed his Rhines motion on May 19, 2017. The court does not find Horde to have engaged in intentional or abusive dilatory litigation tactics.

         B. Good Cause

         While the United States Supreme Court in Rhines required that the petitioner show that good cause exists for his failure to exhaust, the Court 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 that 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 simply allows the claim to return to the state court for merits review). Compare Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1207 (CD. 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 IT) (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 postconviction 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.

         The Tenth Circuit Court of Appeals has not addressed 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, 132 S.Ct. 1309 (2012), and, in fact, may be less demanding.

         In three recent cases in the United States District Court for the District of Utah, the district court judges clarified "good cause" in the context of a, Rhines motion. Kell v. Crowther, 2:07-CV-359, ECFNo. 258 (D. Utah Nov. 16, 2017); Lqffertyv. 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). All of the courts found the analysis of Blake and Rhines //persuasive because in the Rhines context a petitioner is returning to state court to allow the state court to consider his claims. As Honie notes in his motion, "[t]he 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." ECF No. 107 at 6 (emphasis in original). "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.

         Honie argues that he has good cause for failing to exhaust his claims because his postconviction counsel was ineffective for failing to properly raise these claims in his postconviction petition. Post-conviction counsel raised all ...

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