Greene v. McDaniel (DEATH PENALTY)

Filing 77

ORDERDenying 52 Motion for Leave. Denying 28 Motion to Dismiss. Granting 65 Motion to Stay. Status Report due every 6 months (6/15/2009). Following state-court case, petitioner shall file motion in 30 days to lift stay. Signed by Chief Judge Roger L. Hunt on 2/6/09. (Copies have been distributed pursuant to the NEF - AXM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In this capital habeas corpus action, there are, before the court for decision, a motion to dismiss (docket #28) filed by the respondents, and a motion for stay and abeyance (docket #65) and motion for leave to conduct discovery (docket #52) filed by the petitioner. The court will deny the respondents' motion to dismiss and the petitioner's discovery motion, and will grant the motion for stay and abeyance, and stay this action pending the conclusion of pending state-court habeas proceedings. This habeas corpus action is brought pursuant to 28 U.S.C. § 2254, by Travers Arthur Greene, a Nevada prisoner sentenced to death. Petitioner's conviction and death sentence result from the shooting and killing of two people near Las Vegas on September 23, 1994. Petitioner was found guilty and sentenced to death following a jury trial, which was conducted in September and October 1995. The judgment of conviction was entered December 12, 1995. vs. E.K. McDANIEL, et al., Respondents. TRAVERS ARTHUR GREENE, Petitioner, ) ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

2:07-cv-0304-RLH-GWF ORDER

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Petitioner appealed to the Nevada Supreme Court, and that court affirmed on January 4, 1997. Greene v. State, 113 Nev. 157, 931 P.2d 54 (1997). Petitioner then pursued a habeas petition in state court. That petition was ultimately unsuccessful. The Nevada Supreme Court affirmed its denial on November 14, 2006. Subsequently, on February 28, 2008, petitioner initiated a second state-court habeas petition. That action remains pending. Meanwhile, this court received from petitioner a pro se habeas corpus petition (docket #1), initiating this action, on March 9, 2007. The court appointed counsel for petitioner (docket #4, #7). On February 6, 2008, petitioner filed an amended petition for writ of habeas corpus (docket #16). The amended petition includes 17 grounds for relief. According to the parties, the amended petition in this action is essentially identical to the petition pending in state court. On July 1, 2008, respondents filed their motion to dismiss (docket #28). In that motion, respondents argue that all the claims in the amended petition except one ­ Ground 9 ­ are unexhausted in state court. On July 31, 2008, petitioner filed an opposition to the motion to dismiss, along with a motion for stay and abeyance and a motion for leave to conduct discovery (docket #51, #52, #65). Petitioner contends that all but four of his claims ­ Grounds 3, 10, 14, and 16 ­ are exhausted. Petitioner argues that respondents are judicially and equitably estopped from taking the position that several of his claims are not exhausted. Petitioner argues that he should be excused from exhausting the factual bases of certain of his claim due to alleged inadequacy of state corrective process. And, petitioner argues that the court should stay this case pending completion of the pending state-court habeas proceeding. On December 5, 2008, respondents filed a reply in support of their motion to dismiss and an opposition to petitioner's motion for stay and abeyance (docket #73), as well as an opposition to petitioner's discovery motion (docket #74). On December 19, 2008, petitioner filed a reply in support of his motion for stay and abeyance (docket #75) and a reply in support of his discovery motion (docket #76).

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A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest state court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). It is plain that the amended petition in this action is a mixed petition ­ meaning that it contains both exhausted and unexhausted claims. While the parties disagree about the exhaustion of many of the claims in the amended petition, the parties agree that Grounds 3, 10, 14, and 16 are unexhausted. See Amended Petition (docket #16), p. 3. Petitioner requests that this action be stayed while he completes the exhaustion of all his claims in state court; he argues ­ correctly ­ that, if his mixed amended petition is dismissed without prejudice, as requested by respondents, he may face limitations issues when he attempts to file a new federal petition after exhausting his claims in state court. This is because of the well-settled rule that the pendency of a federal habeas petition does not result in statutory tolling of the applicable one-year limitations period. See 28 U.S.C. § 2244(d) (one year limitations period); Duncan v. Walker, 533 U.S. 167 (2001) (pendency of federal habeas petition does not toll limitations period); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (regarding "protective petitions"). If this case were simply dismissed at this point, the statute of limitations might bar petitioner from filing a new federal habeas petition. In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court circumscribed the discretion of the federal district courts to impose stays to facilitate habeas petitioners' exhaustion of claims in state court. The Rhines Court stated: [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause 3

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for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"). * * *

[I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. Rhines, 544 U.S. at 277-78. Rhines does not state or suggest that every unexhausted claim in the petition must satisfy, individually, the "good cause" and "potentially meritorious" requirements before a stay will be permitted. Indeed, the rationale for permitting a stay would apply with more force to a petition in which only one of the unexhausted claims meets the Rhines requirements, but is likely meritorious, than it would to a petition in which all the unexhausted claims meet the Rhines requirements, but none are more than potentially meritorious. Therefore, the efficient approach is for the court to address petitioner's motion for stay and abeyance before reaching respondents' exhaustion arguments as to each individual claim. If a stay is warranted with respect to any single claim, the court need not conduct a claim-by-claim exhaustion analysis regarding the remaining claims. In Ground 3, petitioner alleges that "the State failed to disclose material exculpatory and impeachment information." See Amended Petition, p. 107, lines 8-9; see also, generally, id. pp. 107-10. Specifically, petitioner asserts that the State did not disclose information about benefits that were allegedly conferred upon witness Anthony Fisher in exchange for his testimony at the guilt phase of petitioner's trial. See Amended Petition, pp. 107-10. Fisher was a prosecution witness who testified that petitioner confessed to him that he was responsible for the September 23, 1994, killings. According to petitioner, when Fisher testified, there were, pending against him, charges of

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manufacturing and trafficking a controlled substance, as well as child endangerment, and the State did not disclose those pending charges to petitioner's counsel, and did not elicit information about them at trial. Also according to petitioner, the State failed to disclose to petitioner's counsel benefits that Fisher had received, and benefits he anticipated receiving, vis-a-vis the charges against him, in return for his testimony at petitioner's trial. Petitioner suggests that the State's concealment of evidence supporting this claim delayed his ability to pursue the claim, and is good cause for his failure to exhaust this claim in state court. Respondents did not respond at all to this argument. The court finds good cause for petitioner's failure to exhaust Ground 3, in his uncontested assertion that the State's concealment of evidence affected his ability to proffer this claim in state court. Furthermore, the court finds that Ground 3 is potentially meritorious, and there is no indication that petitioner engaged in intentionally dilatory litigation tactics. Therefore, the court finds that, with respect to Ground 3, petitioner qualifies for a stay under Rhines. Moreover, respondents concede that petitioner has shown good cause for failing to exhaust Ground 6, because of changes in the law since the final resolution of his first state habeas petition. See Respondents' Reply to Opposition to Motion to Dismiss and Opposition to CounterMotion for Stay and Abeyance (docket #73), p. 8. Respondents recognize that petitioner's claim in Ground 6 is based in large part on the decision in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), which was rendered after the conclusion of petitioner's first round of state habeas proceedings. The Nevada Supreme Court affirmed the denial of petitioner's first state habeas petition on November 14, 2006. Furthermore, here again, the court finds that the claim in Ground 6 is not plainly meritless and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Thus, the court finds that petitioner has met the standard for a stay under Rhines. The court will deny respondents' motion to dismiss, will grant petitioner's motion for stay and

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abeyance, and will stay this action so that petitioner may complete his pending state-court habeas action, and fully exhaust all his unexhausted claims. The court's intention is that this will be the only time that the court imposes a stay to allow petitioner to exhaust claims in state court. Petitioner must exhaust all of his unexhausted claims in state court during the stay of the action imposed pursuant to this order. Concomitantly, the court will deny petitioner's discovery motion. Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts states: "A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." The Supreme Court has held that if through "specific allegations before the court," the petitioner can "show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). The Ninth Circuit Court of Appeals has pointed out that "[a] habeas petitioner does not enjoy the presumptive entitlement to discovery of a traditional civil litigant." Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (citing Bracy, 520 U.S. at 903-05). "Rather, discovery is available only in the discretion of the court and for good cause shown...." Id. The court instructed: Habeas is an important safeguard whose goal is to correct real and obvious wrongs. It was never meant to be a fishing expedition for habeas petitioners to "explore their case in search of its existence." Rich, 187 F.3d at 1067. In determining whether there is good cause for discovery, within the meaning of Rule 6 and Bracy, the court takes into consideration whether the claims upon which the petitioner wishes to conduct discovery have been exhausted in state court; this is because habeas corpus relief usually cannot be granted upon unexhausted claims. See 28 U.S.C. § 2254(b); see also Calderon v. United States District Court (Hill), 120 F.3d 927 (9th Cir. 1997); Calderon v. United States District

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Court (Roberts), 113 F.3d 149 (9th Cir. 1997); Calderon v. United States District Court (Nicolaus), 98 F.3d 1102 (9th Cir. 1996), cert. denied, 520 U.S. 1233 (1997). In this case, a substantial portion of the discovery requested by petitioner pertains to claims that petitioner concedes are not yet exhausted in state court. See Motion for Leave to Conduct Discovery (docket #52), pp. 16-30. These same claims are pending in state court, and, as is discussed above, this case will be stayed pending the completion of that state-court litigation. According to respondents, petitioner has filed an identical discovery motion in the state-court action. See Opposition to Motion for Leave to Conduct Discovery (docket #74), pp. 4-5. That is the appropriate forum for petitioner's discovery request, at least in the first instance. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) ("The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfinding to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings."). Under these circumstances, in the interests of federal-state comity and judicial economy, the court will deny petitioner's discovery motion. IT IS THEREFORE ORDERED that respondents' Motion to Dismiss (docket #28) is DENIED. IT IS FURTHER ORDERED that petitioner's Motion for Leave to Conduct Discovery (docket #52) is DENIED. IT IS FURTHER ORDERED that petitioner's Motion for Stay and Abeyance (docket #65) is GRANTED. This action is STAYED to allow petitioner to exhaust, in state court, his unexhausted claims for habeas corpus relief. IT IS FURTHER ORDERED that, on or before June 15, 2009, petitioner shall file and serve a status report, describing the status of his state-court proceedings. Thereafter, during the stay of this action, petitioner shall file such a status report every six months (on or before December 15, 2009; June 15, 2010, etc.). Respondents may, if necessary, file and serve a response

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to any such status report within 15 days after its service. If necessary, petitioner may reply within 15 days of service of the response. IT IS FURTHER ORDERED that, following the conclusion of petitioner's state-court proceedings, petitioner shall, within 30 days, make a motion to administratively reopen this case and lift the stay. IT IS FURTHER ORDERED that this action shall be subject to dismissal upon a motion by respondents if petitioner does not comply with the time limits in this order, or if he otherwise fails to proceed with diligence during the stay imposed pursuant to this order. IT IS FURTHER ORDERED that, absent extraordinary circumstances, this will be the final opportunity that this court provides to petitioner to return to state court to exhaust claims for habeas corpus relief.

Dated this

6th

day of February 2009.

_________________________________________ CHIEF UNITED STATES DISTRICT JUDGE

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