Lampley v. Schmidt

Filing 27

JDR ORDER GRANTING Motion 19 to Stay Proceedings. Upon completion of his {State} Grinols claim, Lampley will have thirty (30) days to amend his 2254 federal habeas petition and proceed in this federal court action. Petitioner to file Status Reports every 6 months, first of which is due 04/18/2014. Signed by Judge John D. Roberts on 10/18/2013. (JAM, Chambers Staff)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JIMMY LAMPLEY,

3:12-cv-00236-RRB -JDR
Petitioner,

ORDER GRANTING MOTION TO
STAY AND ABEY FEDERAL
HABEAS PETITION

vs.
JOSEPH D. SCHMIDT,

(Docket No. 19)
Respondent.

I. Introduction
On June 25, 2013, Petitioner Jimmy Lampley (Lampley) filed a motion
to stay and abey his mixed federal habeas petition. Docket 19. Respondent Joseph
Schmidt (Schmidt) filed a response in opposition to the motion to stay and abey at
Docket 22. Lampley filed his reply at Docket 26. The Motion to Stay and Abey at
Docket 19 is HEREBY GRANTED.

II. Relevant Procedural History
Lampley was convicted after a jury trial of two counts of contempt of
court and two counts of harassment. Docket 20-1. Lampley was represented at trial
by OPA attorney Krista Maciolek. Id. The judge ordered the sentence in this case to
run concurrently with Mr. Lampley’s other cases pending sentencing. Lampley is
currently on parole. Docket 20 at 2.
Lampley, represented by OPA attorney Michael Smith, appealed his
conviction to the Alaska Superior Court. Lampley argued: (1) he and Maciolek had
a conflict amounting to ineffective assistance of counsel; (2) the trial judge should
have held a hearing on the matter and his rulings were inconsistent with the prior
judge assigned to the case; and (3) the district court failed to follow the law of the
case by allowing Maciolek to represent Lampley. Docket 22-3. The Alaska Superior
Court affirmed Lampley’s conviction on December 14, 2007. Docket 22-4.
On May 19, 2008, Lampley filed a petition with the Alaska Court of
Appeals. Docket 22-5. The petition for hearing was denied. Id. At that time, Lampley
was represented by Michael Smith. Mr. Smith did not file a petition for hearing in
front of the Alaska Supreme Court.
While Lampley’s appeal was pending, he filed a motion for postconviction relief in Alaska District Court. Docket 22-6. Lampley argued that his right
to counsel was violated when his attorney caused a breakdown in the attorney-client
relationship, and that he was denied counsel because of ineffective representation
12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

2

and because his attorney prejudiced the jury during trial. Docket 22-6. Smith
subsequently filed an amended application for post-conviction relief Docket 22-7.
The amended PCR alleged: (1) trial counsel failed to investigate allegations of
conflict between OPA and Lampley; (2) trial counsel failed to investigate potential
witnesses who would cause a conflict between OPA and Lampley; (3) trial counsel
caused a conflict by attempting to withdraw from Lampley’s case without first
consulting or informing Lampley; (4) trail counsel caused irreparable dissolution of
the attorney-client conflict by failing to inform Lampley of her intention to withdraw
from his case; (5) trial counsel caused irreparable dissolution of the attorney-client
conflict by failing to inform and/or explain to Lampley counsel’s reason(s) to withdraw
from his case; and (6) trial counsel’s opening statement wavered in counsel’s belief
in Lampley’s innocense. Docket 22-7. The Alaska District Court denied Lampley’s
PCR and the Alaska Superior Court later affirmed. Id.
On November 29, 2012, Lampley filed his pro se petition for writ of
habeas corpus. Docket 1. Lampley alleged denial of effective assistance of counsel
and denial of right of appeal. Even though it appears based upon State court records
that the one-year statute of limitations period has run, the U.S. District Court referred
the matter to the magistrate judge. Docket 9. Counsel was subsequently appointed
and the case was set to proceed to determine whether equitable tolling applies. Id.
On June 24, 2013, Lampley filed a second application for postconviction relief. Docket 20-1. In Alaska, a second application for post-conviction
12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

3

relief is commonly referred to as Grinols claim.1 In his Grinols claim, Lampley again
alleged ineffective assistance of counsel. When asked to list his personal knowledge
of facts concerning his ineffective assistance claim, Lampley stated, “although
requested verbally—Counsel failed to exhaust state levels (sic) of remedy among
other things.” Docket 20-1 at 5.
Since Lampley’s Grinols claim is still pending in State court, his petition
for federal habeas relief is mixed. Lampley has exhausted his Sixth and Fourteenth
Amendment claim as its relates to his trial attorney, Krista Maciolek. However,
Lampley did not exhaust his merit appeal claims because his appellate attorney, Mr.
Smith, failed to file a petition to the Alaska Supreme Court. Lampley has a claim that
he was wrongfully deprived of effective appellate counsel on his merits appeal since
Mr. Smith failed to preserve his own ineffective assistance of counsel claim at the
appellate level. Lampley’s federal habeas petition is therefore mixed.
III. Analysis
At issue is whether this court should stay and abey Lampley’s mixed
federal habeas petition so that he may exhaust his ineffective assistance of counsel
claim as it relates to Mr. Smith.
28 U.S.C. § 2254(b) states, “An application for writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court shall not be

1

Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).

12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

4

granted unless it appears that the applicant has exhausted the remedies available
in the courts of the state...” However, the Section 2254(i) clearly states that “[t]he
ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.”
Under Alaska law, a criminal defendant has a constitutional right to
competent counsel in a post-appeal proceeding. Grinols, 10 P.3d at 618. A
defendant is entitled to relief if a defendant can later prove that his/her first PCR
attorney’s performance was not competent. Id. In doing so, a defendant must
demonstrate in his second application for post-conviction relief that the initial postappeal proceedings were unfair or unlawful and that the defendant suffered
prejudice. Id. In discussing a defendant’s second application for post-conviction
relief, the Alaska Court of Appeals wrote:
We emphasize, however, that the ultimate question in
post-conviction relief litigation is not whether the
defendant’s

post-conviction

relief

attorney

was

incompetent. Rather, the question is whether the trial court
proceeding that resulted in the defendant’s conviction and
sentence were fair and lawful. The incompetence of postconviction relief counsel, is not, by itself a ground for
granting post conviction relief.
12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

5

Id. at 618. When a defendant challenges the competence of the attorney that
represented him during his or her first PCR in State court, the defendant must prove
four things: 1) The defendant must establish their own due diligence in raising the
claim of ineffective representation; 2) the defendant must establish the
incompetence of their prior post-conviction relief attorney; 3) the defendant must
establish that the omitted legal issue is meritorious; and 4) the defendant must
establish that if the issue is resolved in the defendant’s favor, there is a reasonable
possibility that the outcome of the defendant’s original trial court proceeding would
have been different. Id. at 619-20. While Alaska law provides a criminal defendant
review of his attorney’s effectiveness in a first post-conviction action, section 2254(i)
precludes review in federal court. See Arnett v. Pugh, 2005 WL 936977, at *5
(“[T]here is no federal constitutional right to counsel in connection with a second or
successive petition for post-appeal relief from a judgment in a criminal case . . .”).
This court has the power to stay a defendant’s mixed federal habeas
petition. Rhines v. Weber, 544 U.S. 269, 278 (2005). A court may stay and abey a
“mixed [federal habeas] petition if the petitioner had good cause for his failure to
exhaust [all claims], his unexhausted claims are potentially meritorious, and there
is no indication that the petitioner engaged in intentionally dilatory tactics.” Id.
I. Lampley meets the Rhines Criteria
In the present situation, Lampley argues that he satisfies all the Rhines
criteria and, therefore, this court should stay and abey his federal habeas petition.
12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

6

Lampley states that he diligently pursued his appellate and post-conviction claims.
He asserts that he has not engaged in any dilatory tactics because he is merely
seeking state appellate review of merit-appeal claims that were not exhausted in
State court. The magistrate judge agrees.
Lampley has shown good cause for his failure to exhaust his claims in
State court. Mr. Smith represented Lampley on his merits appeal. Mr. Smith did not
file a petition to appear before the Alaska Supreme Court. As a result, Lampley failed
to exhaust his ineffective assistance of counsel claim as it relates to Mr. Smith.
Further, Lampley has diligently pursued his claims in State court. Lampley stated in
his second application for post-conviction relief that he verbally requested that Mr.
Smith file a petition with the Alaska Supreme Court and he timely appealed his
conviction to the Alaska Court of Appeals.
Given the nature of post-conviction relief proceeding in State court,
Lampley is unable to determine when his Grinols claim will be completed. Even
though the one-year statute of limitations period has run, whether Mr. Smith was
ineffective in handling Lampley’s appeal is a cognizable federal constitutional claim.
One option available to Lampley would be to drop his ineffective assistance claim
as it relates to Mr. Smith and proceed in federal court on his ineffective assistance
of counsel claim as it relates to Ms. Maciolek. This option may be advantageous
since § 2254(i) specifically forbids a petitioner from challenging the ineffectiveness
or incompetence of counsel during state post-conviction proceeding. However, the
12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

7

magistrate judge finds that ordering a stay is necessary to prevent Lampley from
potentially losing an arguably meritorious claim in federal court.
Lampley’s post-conviction relief claims are potentially meritorious as
required by Rhines. While § 2254(i) forbids federal courts from considering the
ineffectiveness or incompetence of counsel during state post-conviction relief
proceedings, evidence adduced during those proceedings that is relevant to the
effectiveness of Mr. Smith representation should be allowed to proceed. After all, the
real question to be addressed during a second application for post-conviction relief
is whether the trial court proceeding that resulted in the defendant’s conviction and
sentence were fair and lawful. Grinols, 10 P.3d at 618.
The exhaustion doctrine favors such an outcome. Lampley correctly
points out that “[b]y allowing the state court the opportunity to correct state court
errors, federal courts minimize their intrusion into and disruption of state court
proceedings. Docket 13 at 4 (citing Nino v. Galaza, 183 F.3d 1003, 1007 (9th Cir.
1999)). The magistrate judge is cognizable of the fact that the State court could grant
Lampley relief on his Grinols claim, which would effectively moot the need for further
federal proceedings.
II. Lampley’s Motion Will Not be Denied for Failure to Provide Supporting
Materials
Schmidt claims that Lampley’s motion should be denied for failure to
provide the necessary supporting materials proving factual assertions in his motion

12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

8

in violation of Local Civil Rule 7.1(e). Rule 7.1(e) states, “Failure to include proper
materials in support of or in opposition to, a motion as required by this rule subjects
the motion to summary ruling by the court: (1) If the failure by the moving party, it
may be deemed an admission that the motion is without merit, and, if by the
opposing party, that the motion is well taken.”
Lampley included his second application for post-conviction relief in
support of his motion to stay and abey his federal habeas petition. The attachment
is a signed, legal document in which Lampley attests that all statements made in the
document are true. The document was then notarized. The attachment, while some
what difficult to read, includes the necessary information to support factual
representations discussed in the motion. As such, Lampley complied with Rule
7.1(e).
IV. Conclusion
The Motion to Stay and Abey Lampley’s Federal Habeas Petition at
Docket 19 is HEREBY GRANTED. This court has the authority to stay and abey
Lampley’s federal habeas petition under Rhines. Lampley has demonstrated good
cause for his failure to exhaust. His unexhausted claim is potentially meritorious,
and there is no indication that the petitioner has engaged in intentionally dilatory
tactics. As such, Lampley is responsible for filing status reports with the court every
six (6) months, the first of which shall be due April 18, 2014. Upon completion of his

12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

9

Grinols claim, Lampley will have thirty (30) days to amend his federal habeas petition
and proceed in this federal court action. It is so ordered.

DATED this

18

day of October, 2013, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

12-cv-236-RRB-JDR @19 ORDER granting Mtn to Stay PWHC_mtd.wpd

10
10