Helveston v. Schmidt
Filing
21
JDR ORDER GRANTING Motion 12 to Stay and Abey Proceedings. Status Reports due every six months commencing April 1, 2014. Signed by Judge John D. Roberts on 10/10/2013. (JAM, Chambers Staff)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RAY HELVESTON,
Petitioner,
vs.
3:13-cv-00045-RRB -JDR
ORDER GRANTING MOTION TO
STAY AND ABEY FEDERAL
HABEAS PETITION
JOSEPH SCHMIDT,
(Docket No. 12)
Respondent.
I. Introduction
On May 2, 2013, Petitioner Ray Helveston (Helveston) filed a motion to
stay and abey his mixed federal habeas petition. Docket 12. Before Respondent
Joseph Schmidt (Schmidt) had an opportunity to respond to the motion to stay, the
magistrate judge granted the motion. Docket 14. As a result, Schmidt filed a motion
for reconsideration of the order granting the motion to stay and abey at Docket 15,
as well as a response in opposition to the motion to stay and abey at Docket 16. The
magistrate judge subsequently granted the motion for reconsideration at Docket 17.
The Motion to Stay and Abey at Docket 12 is HEREBY GRANTED. However, if the
petitioner fails to file his second application for post-conviction relief within the next
thirty (30) days from the issuance of this order, the State may seek review of this
order in this federal court.
II. Relevant Procedural History
Helveston was convicted in case 3AN-07-9920 CR for first-degree
burglary and second-degree theft. Docket 16-1. Helveston was sentenced to a
composite sentence of eleven (11) years on December 17, 2008. In January, 2009,
Helveston timely appealed his case. Halveston claimed that he received ineffective
assistance of counsel at trial and that the trial judge denied him the right to present
a defense. The Alaska Court of Appeals denied his merit appeal on March 17, 2010.
On April 1, 2010, Helveston filed a petition for hearing with the Alaska
Supreme Court. Docket 16-2. Helveston again argued that he received ineffective
assistance at trial and that the trial judge denied him the right to present a defense.
The Alaska Supreme Court denied his petition on May 17, 2010. Id.
Prior to both the Alaska Court of Appeal’s denial of Helveston’s merit
appeal and the Alaska Supreme Court’s denial of his petition, he filed his first petition
for post-conviction relief (PCR) on July 21, 2009. Docket 1 at 7. Helveston claimed
that his attorney provided him with ineffective assistance at trial. The Superior Court
denied his PCR and he timely appealed. The Alaska Court of Appeals later denied
13-cv-045 HELVESTON @12 Order Granting Motion to Stay and Abey Federal Habeas Petition_mtd.wpd
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his PCR on July 24, 2013. Id. Helveston indicates he intends to file a Grinols claim.1
He has not yet done so.
On February 28, 2013, Helveston filed pro se for federal habeas relief.
Helveston raised two claims in his federal habeas petition. Docket 1. First, that he
received ineffective assistance of counsel at trial in violation of the Sixth Amendment
to the United States Constitution. Id. at 4 Second, that the trial court denied him the
right to present a defense in light of the manner in which he was permitted to crossexamine a State witness and attack his credibility. Id. at 8. The second claim is
exhausted because both the Alaska Court of Appeals and the Alaska Supreme Court
were given the opportunity to rule on the issue . However, Helveston’s claim that he
received ineffective assistance of counsel is not exhausted because he has not filed
a second application for post-conviction relief in which he will allege that trial counsel
failed to adequately investigate critical witnesses to impeach a state witness at trial.
Docket 13 at 3. Therefore, Helveston’s federal habeas petition is mixed in that it
contains both an exhausted and an unexhausted claim.
III. Analysis
At issue is whether this court should stay and abey Helveston’s mixed
federal habeas petition so that he may exhaust his ineffective assistance of counsel
claim. Such a claim is commonly referred to as a Grinols claim in State court.
1
Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).
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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
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 post13-cv-045 HELVESTON @12 Order Granting Motion to Stay and Abey Federal Habeas Petition_mtd.wpd
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conviction relief counsel, is not, by itself a ground for
granting post conviction relief.
Id. at 618. When a defendant challenges the competence of the attorney that
represented him during his or her first PCR, 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. However, 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.
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In the present situation, Helveston argues that he has 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 his post
conviction relief claims. The magistrate judge agrees as long as Helveston continues
timely to pursue his Grinols claim.
Helveston has diligently pursued his claims in State court thus far. He
timely appealed his conviction to the Alaska Court of Appeals and the Alaska
Supreme Court. Furthermore, while his merit appeal was pending, Helveston filed
an application for post-conviction relief.
In determining whether Helveston engaged in any dilatory tactics, it is
important to note how much of the one-year statute of limitations has run against him
in terms of filing for federal habeas relief. Helveston was convicted on December 17,
2008. He then timely appealed his case to the Alaska Court of Appeals on January,
2009. The Alaska Court of Appeals affirmed Helveston’s conviction on March 17,
2010. He then filed a petition for hearing with the Alaska Supreme Court on April 1,
2010, which the Alaska Supreme Court denied on May 17, 2010. Normally, the oneyear statute of limitations imposed by § 2244(d)(1) would start to run ninety (90)
days after the defendant’s conviction becomes final. However, the clock did not start
running against Helveston because he filed his first application for post-conviction
relief on July 21, 2009. Prior to the ninety days, the one-year statute of limitations
period is tolled during the period “which a properly filed application for State-post
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conviction or other collateral review with respect to the judgment or claim is pending”
under § 2244(d)(2). The Alaska Court of Appeals denied his first PCR on July 24,
2013. The one-year limitation period for Helveston’s federal habeas petition started
to run on July 24, 2013. The habeas petition was filed on February 28, 2013.
Therefore, seventy-eight (78) days have passed since the Alaska Court of Appeals
denied his first PCR.
Given the nature of post-conviction relief proceeding in state court,
Helveston is unable to determine when his Grinols claim will be completed. Even
though Helveston has not yet filed his Grinols claim, it is unlikely that it will be
completed within the one-year limitations period. This would likely be the case had
Helveston already filed his Grinols claim. One option available to Helveston would
be to drop his ineffective assistance claim and proceed in federal court on his
confrontation claim. 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, should Helveston elect to proceed
in state court, the magistrate judge finds that ordering a stay is necessary to prevent
him from potentially losing an arguably meritorious claim in federal court.
Helveston’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
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Helveston’s claim of ineffective assistance of trial counsel 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. Helveston 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
Helveston relief on his Grinols claim, which would effectively moot the need for
further federal proceedings.
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IV. Conclusion
The Motion to Stay and Abey Helveston’s Federal Habeas Petition at
Docket 12 is HEREBY GRANTED. This court has the authority to stay and abey
Helveston’s federal habeas petition under Rhines. Helveston 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, Helveston shall have thirty (30) days from the issuance of
this order to file his Grinols claim. The State may motion the court to reconsider this
order in the event that Helveston fails to file his Grinols claim in State court as stated
above. Helveston is also responsible for filing status reports with the court every six
(6) months. Upon completion of his Grinols claim, Helveston will have thirty (30)
days to amend his federal habeas petition and proceed in this federal court action.
It is so ordered.
DATED this
10
day of October, 2013, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
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