United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
A. Robinson United States District Judge
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). 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.
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).
sought state post-conviction relief. He filed an amended
petition in 2003. PCR 19-92. 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.
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
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.
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). .
Intentionally Dilatory Litigation Tactics
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.
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
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.
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,
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.
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
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.
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 ...