Cunningham v. Belleque

Filing 161

OPINION AND ORDER: The Court concludes that there is a reasonable likelihood that the Oregon courts will address the merits of at least one constitutional claim raised by Petitioner post-conviction. Accordingly, a stay of this federal habeas p roceeding is appropriate, and the Court GRANTS Petitioner's Motion to Stay (ECF 155). This action is STAYED during the pendency of Petitioner's state post-conviction proceedings. Petitioner shall file his state court petition within 60 days of the date of this Opinion and Order and must move to lift this stay within 60 days after the completion of the state court proceedings. Signed on 11/8/2019 by Judge Michael H. Simon. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CLINTON CUNNINGHAM,
Petitioner,

Case No. 3:04-cv-0261-SI
OPINION AND ORDER

v.
BRANDON KELLY, Superintendent, Oregon
State Penitentiary,
Respondent.
C. Renee Manes and Oliver W. Loewy, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, 101 SW Main Street, Suite 1700, Portland OR 97204. Of Attorneys
for Petitioner.
Ellen F. Rosenblum, Attorney General, James M. Aaron, Joathan N. Schildt, and Timothy A.
Sylwester, Assistant Attorney General, DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem,
OR 97301. Of Attorneys for Respondent.
Michael H. Simon, District Judge.
Petitioner moves the Court pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005), to
stay this federal death penalty habeas action and hold it in abeyance while he returns to state
court to raise and exhaust constitutional claims arising out of the Oregon Legislature’s recent
passage of SB 1013 and other newly developed law and research.1 Among other claims,
1

SB 1013 narrows the set of circumstances that meet the definition of aggravated
murder, the only crime punishable by death in Oregon. Although Petitioner’s crime would not
qualify as aggravated murder under the new law, the legislature explicitly provided that the law
does not apply retroactively. In addition, SB 1013 removed the “future dangerousness” penaltyphase question from jury consideration.
PAGE 1 – OPINION AND ORDER

Petitioner seeks to exhaust in state court a claim alleging that because his crimes of conviction
are no longer subject to the death penalty in Oregon, his death sentence now violates his
constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment
and a claim alleging that the determination by the legislative and executive branches to remove
the future dangerousness question constitutes an admission of the constitutional infirmities
presented by that question. Respondent opposes Petitioner’s motion on the basis that his
proposed claims are either already exhausted or plainly meritless.
Petitioner timely filed his initial Petition in this federal case on October 18, 2005, but
shortly thereafter the Court granted his unopposed motion to stay the case pending resolution of
his state court post-conviction action. Following a lengthy stay, Petitioner timely filed his
Amended Petition on November 29, 2017. Since then, the parties have partially briefed issues of
exhaustion and procedural default. Petitioner’s sur-response on those issues was due on
September 23, 2019. Instead of filing that brief, however, he filed the subject motion to stay.
Although Petitioner seeks a stay pursuant to Rhines, because he has not moved to add
new claims allegedly arising out of the passage of SB 1013 to the Amended Petition, the petition
at issue is not a mixed one containing exhausted and unexhausted claims.2 In his Reply,

2

As noted above, the Court has yet to rule on the issues of exhaustion and procedural
default raised concerning the Amended Petition, but those are different types of exhaustion
issues. Specifically, the Court has not answered: (1) whether Petitioner failed fairly to present
any of the current claims in the Amended Petition to the Oregon courts in a procedural context in
which their merits would be considered—in which case they would be “technically exhausted,”
but procedurally defaulted; and (2) whether Petitioner can demonstrate entitlement to excuse any
procedural default of those claims. See Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007)
(“Smith needs no excuse from the exhaustion requirement because he has technically exhausted
his state remedies through his procedural default. The Supreme Court has noted that ‘[a] habeas
petitioner who has defaulted his federal claims in state court meets the technical requirements for
exhaustion; there are no state remedies any longer “available” to him.’ Coleman v. Thompson,
501 U.S. 722, 732 (1991). In cases such as this, where a petitioner did not properly exhaust state
remedies and ‘the court to which the petitioner would be required to present his claims in order
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Petitioner indicates as much when he notes that “[i]t is unnecessary for a petitioner to first amend
his petition in order to present a mixed filing prior to seeking a stay to exhaust newly developed
claims.” Accordingly, should the Court exercise its discretion to grant a stay in this matter, it
must do so pursuant to the procedure described in Kelly v. Small, 315 F.3d 1063 (2003),
overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). “The two
approaches [set out in Rhines and Kelly] are distinct: Rhines applies to mixed petitions, whereas
the three-step [Kelly] procedure applies to stays of fully exhausted petitions . . . .” Jackson v.
Roe, 425 F.3d 654, 661 (9th Cir. 2005) (emphasis in original).
The Kelly approach proceeds as follows: (1) a petitioner amends his petition to delete any
unexhausted claims; (2) the Court stays and holds in abeyance the amended, fully-exhausted
petition, allowing petitioner the opportunity to proceed to state court to exhaust his deleted
claims; and (3) the petitioner later amends his petition and reattaches the newly-exhausted claims
in the original petition. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing Kelly, 315 F.3d
at 1070-71) (noting that the Kelly procedure remains post-Rhines); see also Mitchell v.
Valenzuela, 791 F.3d 1166, 1171 n.4 (9th Cir. 2015) (Kelly procedure remains in place postRhines). In contrast to a Rhines stay, the Kelly procedure does not require a petitioner to
demonstrate good cause for failing to exhaust claims in state court. Id.3

to meet the exhaustion requirement would now find the claims procedurally barred,’ the
petitioner’s claim is procedurally defaulted. Id. at 735 n. 1. In light of the procedural bar to Smith
returning to state court to exhaust his state remedies properly, the relevant question becomes
whether Smith’s procedural default can be excused, not whether Smith’s failure to exhaust can
be excused.”).
3

Petitioner suggests that Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993), and
Nowaczyk v. Warden, 299 F.3d 69, 79 (1st Cir. 2002), support his contention that he has met the
requirements of Rhines. Although these cases confirm that a district court acts within its
discretion when it stays a fully exhausted petition pending resolution of an unexhausted claim in
state court, they do not suggest that a Rhines stay, as opposed to a Kelly stay, is the appropriate
course in a case like this.
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Petitioner should be aware, however, that under the Kelly procedure, he may be precluded
from adding any newly-exhausted claim if the claim is either untimely or not sufficiently related
to his current claims. See 28 U.S.C. § 2244(d); King, 564 F.3d at 1140-41. Although a federal
habeas petitioner may seek to amend a timely-filed petition with new claims after the expiration
of the statute of limitations provided in the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), any such claims must otherwise be timely, as well as “relate back” to timely
claims in the petition. Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas
petition . . . does not relate back (and thereby escape AEDPA’s one-year time limit) when it
asserts a new ground for relief supported by facts that differ in both time and type from those the
original pleading set forth.”).
The Court recognizes that Petitioner is not beginning with a mixed petition, because
currently there are no unexhausted claims to dismiss. As such, he is in the same procedural
position as a petitioner who had already undertaken the first step of the Kelly procedure. Thus,
the instant motion is now amenable to a stay-and-abeyance procedure pursuant to Kelly to allow
Petitioner to attempt to exhaust his additional claims in the state courts and then seek leave to
amend his federal petition upon his return to this Court.
A Kelly stay is appropriate here. To the extent that at least one of his proposed claims
arises out of the passage of SB 1013, the Governor signed it into law mere weeks ago, and its
new provisions went into effect on September 29, 2019. Accordingly, as Respondent concedes,
Petitioner could not have raised such a claim any earlier in state court.
In addition, Petitioner indicates that his constitutional claims will be largely premised on
the Eighth Amendment. Specifically, he contends:
While the law may only apply prospective[ly], the legal changes
represent not only an indicator of the evolving standards of
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decency that govern a maturing society, but an arguably significant
admission of the constitutional infirmities of Oregon’s capital
statutory scheme vis-à-vis the use of the “future dangerousness”
question.
ECF 155 at 8. Petitioner further cites State v. Santiago, 318 Conn. 1 (2015), in which the
Connecticut Supreme Court considered a similar issue after that state passed non-retroactive
legislation abolishing the death penalty. Ultimately, Connecticut’s high court determined that
under the state constitution, its death penalty no longer comported with contemporary standards
of decency and no longer served any penological purpose. Id. at 86-87. The Connecticut
Supreme Court concluded that the execution of offenders who committed their crimes before the
legislation’s effective date would violate the state constitution’s prohibition against cruel and
unusual punishment. Id. at 86. In addition, Petitioner suggests this outcome is consistent with his
contention that “[t]here is no evidence of any state ever having executed a prisoner while having
in place a death-penalty repeal, judicial repeal, or partial repeal (in which execution is barred for
certain crimes and not others).” ECF 155 at 9.
Respondent contends that Petitioner’s proposed claim alleging that the future
dangerousness question violates the United States Constitution because it is rationally and
scientifically infirm and fails to meet the “heightened reliability” requirement of the Eighth
Amendment and his proposed claim that he is entitled to relief under Roper v. Simmons, 543
U.S. 551 (2005), due to his young age (23) at the time of the murder, do not depend on the
passage of SB 1013 and do not fall within either of Oregon’s escape clauses for filing late or
successive post-conviction petitions. In addition, Respondent argues that there is no connection
between the now-removed future dangerousness question and evolving standards of decency
under the Eighth Amendment. Rather, he asserts that its removal likely centered on a judgment
about how best to guide the jury’s decision making in a death penalty case.
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With regard to Santiago and any parallel the Court might draw between that decision and
Petitioner’s claim that his sentence violates evolving standards of decency because his crimes of
conviction would no longer qualify for the death penalty (a claim Respondent concedes is
unexhausted), Respondent argues that Santiago was decided strictly on state constitutional
grounds, and, in any case, involved complete abolishment of the death penalty. Moreover,
Respondent contends that “‘no [United States] Supreme Court decision has held that the failure
of a state legislature to make revisions in a capital sentencing statute retroactively applicable to
all of those who have been sentenced to death before the effective date of the new statute
violates’ the Constitution.” ECF 159 at 8-9 (quoting Lambrix v. Secretary, DOC, 872 F.3d 1170,
1183 (11th Cir. 2017)). In addition, Respondent argues that this claim lacks merit because
whatever the passage of SB 1013 might say about evolving standards of decency in Oregon, it
says little about the standards in the nation as a whole—which is the concern of the Eighth
Amendment.
These arguments notwithstanding, Respondent does not suggest that the claim at issue is
frivolous or that the Oregon courts will refuse to address its merits. To the contrary, the parties’
references to Santiago and Lambrix buttress the conclusion that there is a reasonable likelihood
that the Oregon courts will examine Petitioner’s claim on the merits, just as the Connecticut and
Florida courts did in the previously mentioned cases. The Court need not, however, predict
whether Petitioner will prevail on the merits of this or any other claim in state court.
Finally, Petitioner’s indication that he will file a successive post-conviction petition in
state court raises the question whether this Court may continue adjudicating his federal habeas
Petition while the Oregon courts address his new unexhausted claims. Although the question is
not settled in the Ninth Circuit, existing authority suggests that such parallel litigation is

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disfavored, if not prohibited. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983) (federal
petitioner must await the exhaustion of all of his state-court challenges, even when the single
issue to be challenged in a federal habeas action has already been settled by the state courts,
because other state-court challenges may result in the relief sought by petitioner); see also
Edelbacher v. Calderon, 160 F.3d 582, 587 (9th Cir. 1998) (“[O]ur federal judiciary, ‘anxious
though it may be to vindicate and protect federal rights and federal interests, always endeavors to
do so in ways that will not unduly interfere with the legitimate activities of the States.’” (quoting
Younger v. Harris, 401 U.S. 37, 44 (1971))).
To this end, considerations of comity and judicial efficiency favor allowing Petitioner to
stay this proceeding until the Oregon state courts have been afforded the initial opportunity to
consider the constitutional questions raised by the passage of SB 1013. Respondent asks that the
Court limit the scope of any stay to allow Petitioner to pursue only his claim that his sentence
violates evolving standards of decency under the Eighth and Fourteenth Amendments, because
his crime of conviction would no longer qualify for the death penalty in Oregon. The Court notes
Respondent’s concern that allowing Petitioner to raise additional claims that Respondent insists
are untethered from SB 1013 and that do not satisfy the escape clauses for filing a late or
successive post-conviction petition will unduly delay this matter. Beyond determining that there
is a reasonable chance that the Oregon courts will address the merits of at least one constitutional
claim, however, the Court declines to opine regarding which proposed claims are related to
SB 1013 or otherwise parse what claims the Oregon courts are likely to examine on the merits.
The Court trusts that if certain claims so clearly fail to satisfy one of the escape clauses as
Respondent contends, the Oregon courts can efficiently resolve them on procedural grounds. The
Court also is cognizant of the substantial public resources that proceeding with parallel state and

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federal post-conviction litigation—assuming such action is permissible—would involve. For
these reasons, the Court concludes that the stay-and-abeyance procedure set out in Kelly is
appropriate and prudent at this time.
The Court concludes that there is a reasonable likelihood that the Oregon courts will
address the merits of at least one constitutional claim raised by Petitioner post-conviction.
Accordingly, a stay of this federal habeas proceeding is appropriate, and the Court GRANTS
Petitioner’s Motion to Stay (ECF 155). This action is STAYED during the pendency of
Petitioner’s state post-conviction proceedings. Petitioner shall file his state court petition
within 60 days of the date of this Opinion and Order and must move to lift this stay within 60
days after the completion of the state court proceedings
IT IS SO ORDERED.
DATED this 8th day of November, 2019.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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