United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
WADDOUPS, United States District Court Judge
November 16, 2017, the court, in a written order, granted Mr.
Kell a limited stay and abeyance only with respect to Claim
3(F) of his Amended Petition so that he could properly
exhaust that claim in state court. (ECF No. 258.) The court
found that under Rhines v. Weber, 544 U.S. 269
(2005), Kell had shown a potentially meritorious claim, good
cause for the stay and that his tactics were not abusive or
dilatory. When addressing the good cause element, however,
the court noted a lack of agreement on what that term means,
and a lack of controlling Tenth Circuit precedent. The
court's decision was not a final appealable decision, and
the State now seeks certification under 28 U.S.C. §
1292(b) to pursue interlocutory appellate review of the
following legal question: What “good cause”
standard must a federal habeas petitioner satisfy to obtain a
stay-and-abeyance of federal habeas proceedings under
Rhines v. Weber, 544 U.S. 269 (2005)?
28 of the United States Code addresses the court of
appeals' limited appellate jurisdiction over
interlocutory decisions. Respondent relies on a subpart of 28
U.S.C. § 1292, which sets forth an exception to the
general rule that interlocutory decisions are not appealable:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question
of law as to which there is substantial ground for
difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in
writing in such order.
28 U.S.C. § 1292(b) (emphasis added). The decision to
grant certification lies within the sound discretion of the
Controlling Question of Law
order to obtain interlocutory review under § 1292(b),
Respondent must point to “a controlling question of law
about which there is substantial ground for difference of
opinion.” Mere disagreement with the court's ruling
is insufficient. See United States v. Grand Trunk
W.R.R, 95 F.R.D. 463, 471 (W.D. Mich. 1981).
State asserts that this court's Rhines ruling
identified and resolved “a controlling question of
law”-the meaning of “good cause” under
Rhines. The State notes that without deciding what
the term meant and that Kell had met the standard, the court
could not have granted Kell's Rhines motion.
Although Kell argues that the court did not explicitly
articulate a standard in its Memorandum Decision and Order, a
close look at the order shows that the court adopted the
lower Blake standard. The court noted that
ineffective assistance of post-conviction counsel would
satisfy Rhines good cause only under
Blake's lower standard, and then found that
“post-conviction counsel's deficient
performance” in Kell's case “constitutes
cause under Rhines.” (ECF No. 258 at 5.)
parties agree that “controlling question[s] of
law” under § 1292(b) include questions that (1)
are “serious to the conduct of the litigation, either
practically or legally, ” Katz v. Carte Blanche
Corp., 496 F.2d 747, 755 (3d Cir. 1974); (2) could
“affect the ability of the district court to render a
binding decision” or “materially affect the
outcome of the litigation in the district court, ”
In re Cement Antitrust Litig., 673 F.2d 1020, 1027
(9th Cir. 1981); or (3) “might save time for the
district court, and time and expense for the litigants,
” Johnson v. Burken, 930 F.2d 1202, 1206 (7th
Cir. 1991). This court's good cause determination, and
the resulting stay, fits each of these.
the court must consider whether its decision to grant a
limited stay as to claim 3(F) is serious to the conduct of
the litigation, either practically or legally. Kell argues
that it has no bearing on the court's ability to
substantively decide his claims (citing In re Cement
Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir. 1981)).
He argues that a stay order “merely regulate[s] the
course of the proceedings” (citing Swanson v.
DeSantis, 606 F.3d 829, 932 (6th Cir. 2010)). The court
disagrees. The Rhines order clearly bears on this
court's ability to reach claim 3(F) because, without a
stay that enables Kell to exhaust the claim, it remains
unexhausted and beyond merits review. The court's order
permits Kell to exhaust the claim and then present it in this
court for merits review. Whether Kell met the Rhines
“good cause” standard thus has a substantial
effect on this court's ability to reach the merits of
Kell's claim. For this reason the question could
“materially affect the outcome of the litigation in the
district court.” In re Cement Antitrust
Litig., 673 F.2d at 1027. Thus, the question of what
constitutes good cause under Rhines is a controlling
question of law.
Substantial Ground for Difference of Opinion
standard for a substantial ground for difference of opinion
is met “where ‘the circuits are in dispute on the
question and the court of appeals of the circuit has not
spoken on the point, if complicated questions arise under
foreign law, or if novel and difficult questions of first
impression are presented.'” Couch v. Telescope,
Inc., 611 F.3d 629 (9th Cir. 2010) (internal citation
omitted). The State fails to meet this requirement. While
this court recognized that some district courts have reached
different conclusions about what is required to show good
cause for a Rhines stay (see ECF No. 258, at 3), the
decisions in this district which have addressed the issue
have predominantly applied the standard adopted in Blake
v. Baker, 745 F.3d 977 (9th Cir. 2014) and Rhines v.
Weber, 408 F.Supp. 844, 848-49 (D.S.D 2005) (Rhines
II). Some of these courts have granted stays based on
that standard (see, e.g., Archuleta v. Crowther, No.
2:07-CV-630, ECF No. 107 (D. Utah, Nov. 12, 2014); and
Taylor v. Turley, No. 2:07-CV-194, ECF No. 45 (D.
Utah, Feb. 14, 2008)), while others have adopted the standard
but have denied the stay for other reasons, see,
e.g., Lafferty v. Crowther, No. 2:07-CV-322,
ECF No. 379 (D. Utah, Oct. 30, 2015); and Honie v.
Crowther, 2:07-CV-628, ECF No. 120 (D. Utah, Dec. 13,
Utah case, Carter v. Friel, 415 F.Supp.2d 1314 (D.
Utah 2006), followed Hernandez v. Sullivan, 397
F.Supp.2d 1205, 1207 (C.D. Cal. 2005), a case in which the
district court reached a different conclusion about the good
cause standard. In the absence of other guidance,
the Hernandez court found an analogy to the standard
applied in procedural default cases and applied what it
referred to as an objective standard. But as this court
observed, the Hernandez analysis was subsequently
rejected by the Ninth Circuit in Blake. Although
Carter, which was decided only a year after
Rhines, followed Hernandez, the court did
not have the benefit of the later analysis by the Ninth
Circuit in Blake. No. court in this district has
since followed Carter. Moreover, the Carter
court, upon remand from the Tenth Circuit, recently granted a
Rhines stay in the same case to allow Carter to
exhaust some of his claims in state court. Carter v.
Crowther, 2:02-CV-326, ECF No. 576, 2016 WL 843273 (D.
Utah, March 1, 2016).
the present state of the law is that in this district the
predominant trend is to follow the Blake good cause
standard. Given this trend, there is not sufficient basis to
find a difference of opinion on which standard should apply.
The State also fails to cite to a difference among the
circuits. There is not a substantial disagreement among any
binding authorities that a standard other than the one
applied by the ...