Carter v. Crowther

Filing 575

MEMORANDUM DECISION AND ORDER granting 566 Motion to Stay.. Signed by Judge Ted Stewart on 2/26/2016. (jds)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

DOUGLAS STEWART CARTER,

MEMORANDUM DECISION AND ORDER
ON PENDING MOTIONS

Petitioner,
2:02-CV-326 TS
v.
District Judge Ted Stewart
SCOTT CROWTHER, WARDEN, UTAH
STATE PRISON,
Respondent.

The Tenth Circuit Court of Appeals remanded this case after determining that Carter
should be allowed to supplement his claims based upon the discovery of Brady/Napue evidence
relating to prosecutorial misconduct and suppression of evidence. 1 The question before this
Court is whether Carter should also receive a stay while he exhausts these claims in state court.
Carter moves this Court for an order, pursuant to Rhines, 2 staying his federal habeas corpus
proceedings and holding them in abeyance while he pursues relief in the Utah courts in a state
post-conviction petition. (Docket. No. 558). Carter also requests that the statute of limitation be
tolled. While Respondent does not object to this Court granting a Rhines stay while Carter
exhausts the Brady/Napue (Tovar) claims already raised in his current state post-conviction case,
he does object to the statute of limitations being tolled while Carter seeks that relief.

1

Carter v. Bigelow, 787 F.3d 1269, 1273 (10th Cir. 2015).

2

Rhines v. Weber, 544 U.S. 269 (2005).
1

The victim’s representative, in his response to Carter’s motion to stay, has requested that
this Court exercise its discretion and refuse to stay the proceedings. He argues that Carter’s
Brady/Napue claims are not potentially meritorious, that the petitioner has been dilatory, and that
a stay would violate the victim representative’s rights as well as the purpose of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) by unduly prolonging this case.
Carter has also filed his motion to supplement the petition (Docket. No. 564) as allowed
by the Tenth Circuit. Respondent has moved this Court to stay the time to respond to Carter’s
motion to supplement (Docket. No. 566), on the ground that since the claims Carter wishes to
supplement depend on the merits of his Brady/Napue claims, efficiency and fairness will both be
served by allowing full exhaustion of the claims before determining how and to what extent
those claims affect the claims Carter hopes to supplement.
The court has carefully reviewed the submitted memoranda and has concluded that oral
argument is not necessary. See DUCivR 7-1(f).
Carter’s Renewed Motion to Stay Proceedings Pursuant to Rhines v. Weber
In his motion, Carter requests an order pursuant to Rhines, staying his federal habeas
corpus proceedings and holding them in abeyance while he pursues relief in the Utah courts in a
state post-conviction petition. He also requests that the statute of limitations be tolled. The
claims that Carter is in the process of exhausting in state court are based on newly discovered
material evidence of false testimony and suppressed evidence, evidence which Carter and his
counsel claim they were denied for nearly twenty-six years. Should the Utah courts deny relief
on his claims, Carter will promptly return to this Court and seek relief. Absent a stay-andabeyance order, the one-year statute of limitations imposed by AEDPA could bar Carter from
returning to this Court following the exhaustion of his claims.

2

Prior to the AEDPA, when a petitioner filed a mixed petition, the district court was
required to dismiss it, “leaving the prisoner with the choice of returning to state court to exhaust
his claims or of amending or resubmitting the habeas petition to present only exhausted claims to
the district court.” 3 Because there were no timeliness requirements for federal habeas corpus
petitions, returning to state court to exhaust claims carried few consequences for the petitioner.
AEDPA “dramatically altered the landscape for federal habeas corpus petitions.” 4 It preserved
the total-exhaustion requirement, 5 but it also added a one-year statute of limitations on the filing
of federal petitions. 6 Thus, if this Court were to withdraw Carter’s federal petition without
prejudice to allow him to return to state court to exhaust, he may still be barred from filing a
supplemental or second petition because of AEDPA’s strict one-year statute of limitation.
To eliminate the dilemma created by the AEDPA’s limitations period combined with the
total exhaustion requirement, the United States Supreme Court in Rhines held that a district court
should “stay the petition and hold it in abeyance while the petitioner returns to state court to
exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the
district court will lift the stay and allow the petitioner to proceed in federal court.” 7 A stay and
abeyance is only appropriate when “the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner

3

Rose v. Lundy, 455 U.S. 509, 510 (1982).

4

Rhines, 544 U.S. at 274.

5

See 28 U.S.C. § 2254(b)(1)(A).

6

Id. § 2244(d).

7

Rhines 544 U.S. at 275–76.
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engaged in intentionally dilatory litigation tactics.” 8 In fact, if those criteria are met, “it would
be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition.”9
The victim representative in this case asks the Court to exercise its discretion to decide
that Carter’s claim is not potentially meritorious, that he has been dilatory, and that a stay would
violate the victim’s rights and the purpose of AEDPA by unduly prolonging this already delayed
case. The Court understands the victim representative’s frustration and desire for proceedings
free from unreasonable delay. However, the Court finds that Carter meets all of the Rhines
requirements for a stay and abeyance. Therefore, the Court will grant the Rhines motion.
The Respondent does not object to this Court granting a Rhines stay. He does object,
however, to Carter’s request that the statute of limitations be tolled. He does not provide any
rationale for his objection, and the Court agrees with Carter that the holding in Rhines was
specifically designed to support the “twin purposes” of AEDPA, to reduce delay and promote
finality. 10 It did so through the tolling provision of 28 U.S.C. § 2244(d)(2), which “‘balances the
interests served by the exhaustion requirement and the limitation period’ ‘by protecting a state
prisoner’s ability later to apply for federal habeas relief while state remedies are being
pursued.’” 11 Thus, it is explicitly contemplated by Rhines that a stay will necessarily include
tolling of the statute of limitations.
Carter’s Motion to Supplement
The Tenth Circuit Court of Appeals remanded this case “with directions to allow
supplementation based on” Carter’s Brady/Napue claims, and “to determine in the first instance

8

Id. at 278.

9

Id.

10

Id. at 276–77.

11

Id. at 276 (quoting Duncan v. Walker, 533 U.S. 167, 179 (2001)).
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whether any additional supplementation or amendment” is warranted based on those claims. 12
At the same time he filed his renewed Rhines motion to stay and hold in abeyance, Carter filed
his motion to supplement, alleging generally that many or most of his habeas claims ought to be
supplemented in light of the Tovar claims. 13 But because Carter’s motion to supplement
depends on the Tovar claims, which have neither been exhausted nor factually developed, it is
unclear whether and to what extent the Tovar claims ought to inform the remainder of Carter’s
claims. Both Carter and Respondent agree that Carter must first exhaust his new claims in state
court. Since Carter’s supplementation request depends on the effect, if any, the Tovar material
will have on his other claims, it is premature for this Court to decide whether to permit Carter to
supplement those claims until the exhausted Tovar claims return from state court.
Respondent has filed a motion to stay time to respond to Carter’s motion to supplement
the petition. Carter has no objection to Respondent’s request, but he does ask that he be allowed
to update his motion to supplement the petition with the information obtained in state court
before Respondent files his response. The Court will instead deny Carter’s motion to supplement
without prejudice. That way Carter can re-file a comprehensive motion to supplement after the
state proceedings have concluded.
Conclusion
The Tenth Circuit found that AEDPA concerns of finality, comity, and federalism were
not detracted from by allowing Carter to supplement his habeas petition. 14 Because of the nature
of the claims, none of these principles weighs against a Rhines stay either. Judicial efficiency is

12

Carter, 787 F.3d at 1281.

13

See generally Docket. No. 564, at 1.

14

Carter, 787 F.3d at 1279.
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best served by a stay, as it would prevent piecemeal and concurrent litigation, and state court
relief would eliminate the need for this proceeding.
This Court hereby grants Petitioner’s Renewed Motion to Stay Proceedings Pursuant to
Rhines v. Weber (Docket. No 558). Mr. Carter’s federal habeas corpus proceedings will be
stayed and held in abeyance while he returns to the Utah state courts to seek a ruling on the
Tovar claims. The statute of limitation will be tolled while Carter seeks relief in state court.
The Court denies Carter’s Motion to Supplement the Petition (Docket. No. 564) without
prejudice, allowing Carter to re-file a comprehensive motion to supplement the petition,
including the information obtained in state court, after the state court proceedings have
concluded.
The Court also grants Respondent’s Motion to Stay (Docket. No. 566). The Court will
establish a briefing schedule for Petitioner to file a new motion to supplement and Respondent’s
response thereto after Petitioner’s claims have been exhausted in state court.
Petitioner is directed to file with the Court every six months a status report, informing the
Court of the status of the state court proceedings.
DATED this 29th day of February, 2016.
BY THE COURT:

TED STEWART
United States District Judge

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