Bezarez v. Phelps et al

Filing 17

MEMORANDUM ORDER - denying 14 MOTION to Appoint Counsel and MOTION to Stay filed by Jose D. Bezarez. Signed by Judge Sue L. Robinson on 8/1/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOSE D. BEZAREZ,

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)

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)

) Civ. No. 12-587-SLR

Petitioner,

v.

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PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,

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)
)

)

)

Respondents.

MEMORANDUM ORDER
At Wilmington this

/'*

day of ~

, 2013, having reviewed the

above captioned case;
IT IS ORDERED that petitioner Jose D. Bezarez's ("petitioner") "motion to stay
and [requesting the] appointment of counsel" (0.1. 14) is DENIED, for the reasons that
follow:
1. Background. On May 11, 2012, petitioner filed an application for habeas
relief pursuant to 28 U.S.C. § 2254. (0.1. 2) The application asserts four claims: (1) the
trial court abused its discretion in admitting extrinsic evidence of petitioner's prior bad
acts; (2) trial counsel provided ineffective assistance by failing to request a jury
instruction regarding accomplice testimony credibility; (3) appellate counsel provided
ineffective assistance by failing to raise the argument that the trial court erred as a
matter of law by permitting a non-court certified interpreter to translate a statement
under Del. Code Ann. tit. 11, § 3507; and (4) trial counsel was ineffective for failing to
object to the prosecution's use of a police detective's translation of witnesses' prior out­

of-court statements with substantive independent testimonial value. (D.1. 2)
2. Petitioner's pending application, and the State's answer, indicate that
petitioner has exhausted state remedies for his four habeas claims by presenting them
to the Delaware Supreme Court on direct appeal or post-conviction appeal.
3. On July 9, 2013, petitioner filed a "motion to stay and [requesting the]
appointment of counsel," asking the court to stay his habeas proceeding, remand the
case back to the Delaware state courts, and order the Delaware state courts to provide
him with counselor order such representation itself. (0.1. 14) Citing Martinez v. Ryan,
132 S.Ct. 1309 (2012), petitioner contends that he was "ill-equipped" in his first post­
conviction proceeding in the Delaware state courts because, even though he raised
claims of ineffective assistance of counsel in his Rule 61 proceeding, he "did not raise
ineffectiveness where he should have, nor did he artfully challenge his convictions and
show cause where it should have been demonstrated." (D.1. 14 at 2)
4. The State filed a response in opposition to petitioner's motion, contending
that a stay is not warranted in this case, and that the court does not have the authority
to remand the case back to the Delaware state courts and order the State of Delaware
to appoint counsel. (D.I. 15)

5. Standard of Review. "District courts ... ordinarily have authority to issue
stays, where such a stay would be a proper exercise of discretion." Rhines v. Weber,
544 U.S. 269, 276 (2005). And, although "AEDPA does not deprive district courts of
[this] authority, ... it does circumscribe their discretion. Any solution to this problem
must ... be compatible with AEDPA's purposes." Id.

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Consequently, district courts on

habeas review generally only stay a habeas proceeding if the habeas application
contains both exhausted and unexhausted claims, and the petitioner's ability to file a
future habeas application after proper exhaustion in the state courts will be clearly
foreclosed by the expiration of AEDPA's one-year filing period. Id.; see also Pliler v.
Ford, 542 U.S. 225 (2004).
6. In turn, it is well-settled that a petitioner does not have an automatic
constitutional or statutory right to representation in a federal habeas proceeding. 1 See
Coleman v. Thompson, 501 U.S. 722, 752 (1991); United States v. Roberson, 194
F.3d 408, 415 n.5 (3d CiL 1999). Nevertheless, a district court may seek
representation by counsel for a petitioner in a federal proceeding who demonstrates
"special circumstances indicating the likelihood of substantial prejudice to [petitioner]
resulting. . . from [petitioner's] probable inability without such assistance to present the
facts and legal issues to the court in a complex but arguably meritorious case." See
Tabron v. Grace, 6 F.3d 147, 154 (3d CiL 1993)(citing Smith-Bey v. Petsock, 741 F.2d
22,26 (3d Cir. 1984); 18 U.S.C. § 3006A (a)(2)(8)(representation by counsel may be
provided when a court determines that the "interests of justice so require").
7. Discussion. At this juncture, petitioner is not asking the court for
representation in his federal habeas proceeding. Rather, he asks the court to stay the
instant case, remand it to the Delaware state courts, and either order the State of
Delaware to provide him with representation in a new Rule 61 proceeding or order such

1The recent Supreme Court decision, Martinez v. Ryan, did not alter this long­
standing rule, because the Martinez Court explicitly refrained from recognizing or
creating an automatic constitutional right to counsel in collateral proceedings. See
Martinez, 132 S.Ct. 1309, 1315 (2012).

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representation itself. Petitioner appears to request representation in a new Rule 61
proceeding so that he can present challenges to his conviction in a more "artful"
manner, and possibly to raise additional but unspecified ineffective assistance of
counsel claims.
8. Turning to petitioner's request to stay the instant proceeding, the court notes
petitioner is, in essence, asking the court to stay the proceedings so that he can start
over with his postconviction proceedings in state court. Considering that all of the
claims in petitioner's pending habeas application are exhausted and were adjudicated
on the merits in the state courts, the court finds that staying the instant proceeding
would be incompatible with AEDPA's objective of encouraging finality. See Ryan v.
Gonzales, 133 S.Ct. 696, 709 (2013)(opining that a stay was inappropriate for
ineffective assistance of counsel claims that were adjudicated on the merits in state
post-conviction proceedings and were therefore subject to review under § 2254(d)).
Thus, the court denies petitioner's motion for a stay.
9. As for petitioner's request that the court remand his case to the state courts
and order the State of Delaware to provide him with representation, the court lacks
jurisdiction to provide this relief. See In fe Wolenski, 324 F.2d 309 (3d Cir. 1963)(per
curiam)(explaining that the district court "had no jurisdiction" to "issue writ of mandamus
compelling action by a state official").
10. Moreover, contrary to petitioner's belief, the recent Supreme Court case,
Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not dictate or provide justification for a
different result. Notably, the Martinez Court explicitly stated that its holding "addresses
only the constitutional claims presented in this case," namely,

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[w]here, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial review collateral proceeding, there was no counselor counsel
in that proceeding was ineffective.
Martinez, 132 S.Ct. at 1320. In other words, Martinez creates a limited method for

petitioners in federal habeas cases to prove cause for excusing his state court
procedural default of certain ineffective assistance of counsel claims; it does not
justify a federal district court's stay of a habeas proceeding or authorize a federal district
court to order a state to provide representation for petitioners in state collateral
proceedings.
11. In addition, the Martinez exception does not help petitioner in his instant
request for relief because none of the ineffective assistance of counsel claims
presented in the instant application are procedurally defaulted. And, although petitioner
asserts that he "did not raise ineffectiveness where he should have," he does not
identify any additional and presumably procedurally defaulted ineffective assistance of
trial counsel claim not previously presented in state court for which he needs to seek
cause to excuse the procedural default of such claims.
12. For all of these reasons, petitioner's motion is denied.

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