Hayward v. Premo

Filing 124

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 in post-conviction proceedings. Accordingly, a stay of this federa l habeas proceedings is appropriate, and the Court GRANTS petitioner's Motion to Stay (ECF 117 ). This action is STAYED during the pendency of Petitioner's state post-conviction proceedings. Petitioner shall file his state court petition w ithin 90 days of the date of this Opinion and Order and must move to lift this stay within 60 days of the completion of the state court proceedings. Signed on 2/7/2020 by Judge Michael H. Simon.(Mailed to Pro Se party on 2/7/2020.) (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL JAMES HAYWARD,
Petitioner,
v.
JEFF PREMO, Superintendent,
Oregon State Penitentiary,
Respondent.

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3:13-cv-1792-SI
OPINION AND ORDER

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, Erin K. Galli, Samuel A. Kubernick, 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 passage of
SB 1013 and other newly developed law and research.1 Among other claims, Petitioner seeks to

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
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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 of Oregon’s prior capital
sentencing scheme. Respondent opposes Petitioner’s motion on the basis that his proposed
claims would either be procedurally barred in state court or are plainly meritless.
Petitioner timely filed his initial Petition in this federal case on September 25, 2014.
Thereafter, in accordance with the Court’s scheduling order, the parties began briefing issues of
exhaustion and procedural default. In an Opinion and Order dated July 25, 2016, however, the
Court granted Petitioner’s earlier motion to stay this action in order to exhaust certain claims in a
successive post-conviction petition. The Court lifted that stay in June 2017, and the parties
resumed briefing issues of exhaustion and procedural default.
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 Petition, the petition at issue is
not a mixed one containing exhausted and unexhausted claims.2 Accordingly, should the Court
apply retroactively. In addition, SB 1013 removed the “future dangerousness” penalty-phase
question from jury consideration.
As noted above, the Court has yet to rule on issues of exhaustion and procedural default
raised concerning the Petition, but those present different types of exhaustion issues.
Specifically, the Court has not answered: (1) whether Petitioner failed to fairly present any of the
current claims in the 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.
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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); see also Mitchell v. Valenzuela, 791 F.3d 1166, 1171 n.4 (9th Cir. 2015) (Kelly
procedure remains in place post-Rhines). 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

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 to meet the exhaustion requirement would not 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, 662 (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, as presently
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 pursuant to Kelly to allow Petitioner to attempt
to exhaust his additional claim 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 Petitioner’s proposed
claims arises out of the passage of SB 1013, its new provisions went into effect on September 29,
2019. Accordingly, 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:
He anticipates raising at least three claims for relief: that the
capital statutory scheme used at his trial is unconstitutional under
the requirements of Furman and it’s progeny; that the capital
statutory scheme used at his trial [ ] fails to meet the heightened

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standard of reliability for capital cases required by the Eighth
Amendment and applicable Supreme Court authority; and that it
constitutes Cruel and Unusual punishment in violation of the
Eighth Amendment to subject him to death under the evolving
standards of decency, particularly as evidenced by Oregon’s
statutory revisions.
ECF 117 at 5-6.
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—be it a current repeal, a now past period repeal, judicial repeal,
or partial repeal (in which execution is barred for certain crimes and not others).” ECF 117 at 8.
Respondent contends that Petitioner’s proposed claim alleging that the future
dangerousness question violates the United States Constitution because it is constitutionally,
rationally, and scientifically infirm and fails to meet the “heightened reliability” requirement of
the Eighth Amendment does not depend on the passage of SB 1013, and does not fall within
either of Oregon’s escape clauses for filing late or successive post-conviction petitions.
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, Respondent argues that Santiago was

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decided strictly on state constitutional grounds, and, in any case, involved complete abolishment
of the death penalty. Moreover, Respondent contends and that “‘no [United States] Supreme
Court decision holds 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 119 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 chance 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 as to 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 disfavored, if not completely 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
where 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);

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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 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
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.

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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 in post-conviction
proceedings. Accordingly, a stay of this federal habeas proceedings is appropriate, and the Court
GRANTS petitioner’s Motion to Stay (ECF 117). This action is STAYED during the pendency
of Petitioner’s state post-conviction proceedings. Petitioner shall file his state court petition
within 90 days of the date of this Opinion and Order and must move to lift this stay within 60
days of the completion of the state court proceedings.
IT IS SO ORDERED.
DATED this ___ day of February, 2020.
7th
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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