Boyette v. Chappell

Filing 51

ORDER GRANTING 48 MOTION TO HOLD FEDERAL PROCEEDINGS IN ABEYANCE - Boyette's motion for a stay is GRANTED. Status Report due by 7/11/2016 and every 90 days thereafter until proceedings in his state exhaustion case are completed. Signed by Judge William H. Orrick on 06/09/2016. (jmdS, COURT STAFF) (Filed on 6/9/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAURICE BOYETTE,

Case No. 13-cv-04376-WHO

Petitioner,
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v.

ORDER GRANTING MOTION TO
HOLD FEDERAL PROCEEDINGS IN
ABEYANCE

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RON DAVIS,

Re: Dkt. No. 48

Respondent.

United States District Court
Northern District of California

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INTRODUCTION

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Petitioner Maurice Boyette, a condemned prisoner at California’s San Quentin State

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Prison, has filed a request to stay his federal habeas petition pending the completion of exhaustion

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proceedings in state court. Respondent opposes his request. Because Boyette has good cause for

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his failure to exhaust, his unexhausted claims are potentially meritorious, and he has not engaged

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in dilatory tactics, his motion is GRANTED.

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BACKGROUND
In 1993, Boyette was convicted in Alameda County Superior Court of the first-degree

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murders of Gary Carter and Annette Devallier. Evidence at trial established that petitioner was a

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bodyguard for a drug dealer named Antoine Johnson. Johnson learned that Carter and Devallier

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had allegedly stolen rock cocaine and cash from a house Johnson maintained. Boyette

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accompanied Johnson to the house, confronted Carter and Devallier and in the ensuing melee, shot

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and killed both at pointblank range. The jury found true the special circumstance allegation that

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Boyette committed a multiple murder, and sustained the enhancement allegation that he used a

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firearm in the commission of the murders. He was also convicted of being a felon in possession of

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a firearm. On March 25, 1993, the jury sentenced him to death. The California Supreme Court

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affirmed petitioner's conviction and death sentence on direct appeal. People v. Boyette, 29 Cal.

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4th 381, 403 (2002), modified (Feb. 11, 2003), rehearing denied (Feb. 11, 2003).

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On October 19, 2000, while his appeal was pending, Boyette filed a state habeas petition.

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(Case No. S092356, AG009711-AG10273). The California Supreme Court issued an Order to

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Show Cause limited to his claims for relief based on juror bias and misconduct on October 19,

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2000. (AG022329). An evidentiary hearing with respect to these claims was held in Alameda

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County Superior Court on November 15-17, 2010. The referee presiding over the hearing issued

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his report to the California Supreme Court on December 1, 2010.

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On May 30, 2013, the California Supreme Court adopted the referee's findings and ruled
against petitioner on his jury bias and misconduct claims. On August 28, 2013, the California

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United States District Court
Northern District of California

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Supreme Court filed an order denying the remainder of the claims in Boyette’s state habeas

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petition.

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On September 20, 2013, Boyette filed a request for appointment of counsel. (ECF Doc.

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No. 1) Counsel were appointed on January 29, 2014. (ECF Doc. No. 4) Boyette subsequently

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filed a request for equitable tolling, which was granted on March 25, 2014. (ECF Doc. No. 12)

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He filed a federal habeas petition on January 5, 2015. (ECF Doc. No. 23)

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On March 23, 2015, respondent filed a motion to dismiss Boyette's habeas petition for

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failure to exhaust claims. (ECF Doc. No. 36) On January 4, 2016, I denied respondent’s motion

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and determined that claims 1, 3, 9, 10, 23, 24 and 27 are unexhausted in whole or in part. The

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instant briefing followed.

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LEGAL STANDARD

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The Supreme Court follows a rule of “total exhaustion,” requiring that all claims in a

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habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455

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U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition to allow a

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petitioner to exhaust his claims in state court without running afoul of the one-year statute

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limitations period for receiving federal habeas review imposed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Rhines v. Weber, 544 U.S. 269, 273-75 (2005). A

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district court may stay a mixed petition if: 1) the petitioner has good cause for his failure to
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exhaust his claims, 2) the unexhausted claims are potentially meritorious, and 3) there is no

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indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278.

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The Supreme Court has not articulated with precision what constitutes “good cause” for

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purposes of granting a stay under Rhines. In Pace v. Digugliemo, 544 U.S. 408, 416 (2005), the

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Supreme Court stated that a “petitioner’s reasonable confusion about whether a state filing would

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be timely will ordinarily constitute ‘good cause’ for him to file in federal court” without

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exhausting state remedies first. More recently, in Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012),

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the Supreme Court held that ineffective assistance of post-conviction counsel may constitute cause

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for overcoming procedural default.

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The Ninth Circuit has clarified that “good cause” for failure to exhaust does not require

United States District Court
Northern District of California

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“extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

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Nonetheless, the good cause requirement should be interpreted in light of the Supreme Court’s

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admonition that stays be granted only in “limited circumstances” so as not to undermine the

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AEDPA’s twin goals of reducing delays in the execution of criminal sentences and streamlining

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federal habeas proceedings by increasing a petitioner’s incentive to exhaust all claims in state

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court. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). A petitioner’s mistaken

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impression that his counsel included a claim in an appellate brief does not qualify as “good cause”

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for failure to exhaust because such an allegation could be raised by any petitioner, rendering stay-

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and-abeyance orders routine. Id. More recently, in Blake v. Baker, 745 F. 3d 977, 983 (9th Cir.

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2014), the Ninth Circuit held that “[ineffective assistance] by post-conviction counsel can be good

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cause for a Rhines stay,” finding that such a conclusion was consistent with and supported by

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Martinez.

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DISCUSSION

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Boyette satisfies the three pronged test in Rhines requirements for a stay. 544 U.S. at 278.

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As to the first prong, good cause for failure to exhaust, Boyette alleges that because

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California's untimeliness rules are unclear, he was compelled by Pace to file a mixed petition to

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avoid risking the loss of his rights and remedies. In Pace, the United States Supreme Court

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discussed, albeit in dicta, the predicament a prisoner could face if he litigated in state court for
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years only to find out that his petition was untimely and therefore not “properly filed” and not

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entitled to statutory tolling under 28 U.S.C. § 2244(d)(2). 544 U.S. at 416. The Court stated a

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“prisoner seeking state postconviction relief might avoid this predicament, however, by filing a

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‘protective’ petition in federal court and asking the federal court to stay and abey the federal

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habeas proceedings until state remedies are exhausted.” Id. citing Rhines, 544 U.S. at 278. The

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Court in Pace went on to state that “[a] petitioner's reasonable confusion about whether a state

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filing would be timely will ordinarily constitute ‘good cause’ under Rhines for him to file in

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federal court.” Id.

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Boyette’s predicament is the type of situation referenced in Pace. If he were to raise his
unexhausted claims in a successive habeas petition in state court before filing his federal petition,

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United States District Court
Northern District of California

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he would risk missing the AEDPA’s one-year limitation period if his claims are found to be

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untimely in state court. He safeguards against such an eventuality by filing his federal petition

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first and seeking the instant stay.

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Respondent argues that Boyette cannot reasonably harbor any confusion about whether his

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state filing will be timely because California’s discretionary untimeliness rules have been

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determined to be firmly established and regularly follow by the United States Supreme Court in

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Walker v. Martin, 562 U.S. 307 (2011). Martin, however, dealt with the adequacy of California’s

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untimeliness rules for purposes of procedural default. Id. at 315-321. It did not deal with

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timeliness rules for purposes of determining whether a petition was properly filed.

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Respondent complains that "not one first time Rhines stay request in a capital case in this

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district has been denied," and that "this surely cannot be what the Supreme Court in Rhines meant

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by the concept 'limited circumstances.'" (ECF Doc. No. 49 at 9) As respondent himself

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acknowledges, however, the definition of good cause need not be limited "to only those excuses

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that arise infrequently." Blake, 745 F.3d at 982. I am not deciding the other cases in this district.

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In this one, Boyette has demonstrated good cause.

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Under the second prong of the Rhines test, a district court would abuse its discretion if it

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were to grant a petitioner a stay when his unexhausted claims are plainly “meritless.” Rhines, 544

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U.S. at 277. A stay is appropriate as long as at least one claim is not plainly meritless. See
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Petrosky v. Palmer, No. 3-10-cv-0361, 2013 WL 5278736 *5 (D.Nev. Sept. 16, 2013). Boyette

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has filed a lengthy petition containing allegations that are not vague, conclusory or patently

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frivolous. His claims are well-supported by specific averments and numerous exhibits. He has

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articulated cognizable constitutional claims supported by relevant legal authority, and has

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presented such evidence and offers of proof as are presently available to him. Based on its review

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of the record, I cannot conclude that his unexhausted claims are plainly meritless.

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Under the third prong of the Rhines test, “it likely would be an abuse of discretion for a

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district court to deny a stay and to dismiss a mixed petition if . . . there is no indication that the

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petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. I found that Boyette has
been pursuing his rights diligently when I granted equitable tolling. (ECF Doc. No. 12) Since

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United States District Court
Northern District of California

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then, Boyette has been following this Court’s Habeas Local Rules in litigating his petition. There

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is no evidence that he has engaged in dilatory litigation tactics to date. He satisfies the third and

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final prong of Rhines as well.
CONCLUSION

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For the above-mentioned reasons, I ORDER:

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1) Boyette’s motion for a stay is GRANTED;

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2) Thirty days after the entry of this Order, and every 90 days thereafter until proceedings

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in his state exhaustion case are completed, Boyette shall serve and file a brief report

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updating me on the status of his pending state habeas action. No later than 30 days after

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proceedings in his state case are completed, Boyette shall serve and file notice that

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proceedings are completed.

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IT IS SO ORDERED.

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Dated: June 9, 2016

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______________________________________
WILLIAM H. ORRICK
United States District Judge

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