Kell v. Turley

Filing 258

MEMORANDUM DECISION AND ORDER-granting in part and denying in part 245 Motion to Stay. See Order for details. Signed by Judge Clark Waddoups on 11/16/17. (jmr)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

TROY MICHAEL KELL,

MEMORANDUM

Plaintiff,

DECISION AND ORDER

v.
SCOTT CROWTHER, WARDEN, UTAH
STATE PRISON;

2:07-CV-00359-CW
Judge Clark Waddoups

Defendant.

Before the court is Petitioner Troy Michael Kell’s Motion to Stay Federal Habeas
Proceedings pursuant to Rhines v. Weber, 544 U.S. 269, 276 (2005). (ECF No. 245.)
Respondent (the State) filed its opposition. (ECF No. 247.) Kell addressed the State’s
objections in his reply. (ECF. 254.) Kell moves this court to stay his federal habeas proceedings
while he returns to state court to attempt to exhaust previously unexhausted claims, specifically
Claims 3(D) and 3(F) from his amended petition. The State opposes Kell’s motion, arguing that
he has not shown good cause for failing to exhaust his claims, the claims lack any potential
merit, and the motion is dilatory.
I.

PROCEDURAL BACKGROUND

Kell was serving a life-without-parole sentence for murder when he stabbed fellow
inmate Lonnie Blackmon to death. On August 1, 1996, a jury convicted Kell and sentenced him
to death. See generally State v. Kell, 61 P.3d 1019 (Utah 2002). On November 1, 2002, the Utah
Supreme Court affirmed Kell’s conviction and sentence. (Id.) On August 1, 2005, Kell’s postconviction counsel filed a 21-page Amended Petition for Post-Conviction Relief that contained

only one case citation, and appended no declarations or other new evidence. (PCR 252-72.)1
The state moved to dismiss, (PCR 290-93), and the court granted the motion. The Utah Supreme
Court affirmed. Kell v. State, 194 P.3d 913 (Utah 2008).
On January 13, 2009, Mr. Kell filed a pro se motion for relief pursuant to Utah Rule
60(b) in the state court, alleging that he had received ineffective assistance of counsel in his postconviction proceedings because counsel had failed to investigate and failed to raise many
meritorious claims. (PCR 684-51.) Four months later federal habeas counsel filed an Initial
Petition in Kell’s federal habeas case. (ECF No. 36.) On June 12, 2009, counsel filed a motion
to stay federal habeas proceedings, so that he could resolve previously-pending state court
litigation. (ECF Nos. 40, 41.) In its order on the motion to stay, the court noted that Kell had
filed a “protective federal habeas petition,” despite still-pending state court litigation, in order to
ensure compliance with the AEDPA statute of limitations. (ECF No. 51.)
The Utah Supreme Court denied the Rule 60(b) appeal. Rehearing was denied and the
case was remitted on September 24, 2012. Kell filed his amended petition in this court on
January 14, 2013. (ECF No. 94.) His Amended Petition included, for the first time, Claims 3(D)
and 3(F), both of which allege extraneous influence on jurors. (ECF No. 94 at 33-40.) These
claims were supported by declarations from jurors that were signed in May 2012, after the Utah
Supreme Court had issued its opinion denying Mr. Kell’s Rule 60(b) motion. (See ECF No. 94,
exhibits 1, 3, 4, 5, 10, and 11.) Kell asserts that his Amended Petition in this court was his first
available opportunity to raise these claims after the denial of his Rule 60(b) motion in state court.

The court will cite to the record of Kell’s state post-conviction proceedings, Utah Sixth Judicial
District, Sanpete County Case No. 030600171, as “PCR” and the Bates-stamped page numbers,
for example PCR 431. A copy of this record is filed with the clerk’s office in conjunction with
ECF No. 118.

1

II.

ANALYSIS

District courts have inherent authority to issue stays, and AEDPA does not deprive courts
of that authority. But it does limit their discretion to exercise that authority because a stay
pursuant to Rhines creates tension between AEDPA’s goals of federalism and comity and its goal
of streamlining the federal habeas process. As a result any stay under Rhines cannot be
indefinite and must meet certain criteria. The petitioner must show that (1) good cause exists for
his failure to exhaust, (2) his unexhausted claims are potentially meritorious, and (3) he has not
engaged in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at 276-78. “Petitioner,
as movant, has the burden to show he is entitled to a stay under the Rhines factors.” Carter v.
Friel, 415 F.Supp.2d 1314, 1317 (D. Utah 2006).
A. Good Cause
The United States Supreme Court in Rhines did not define with any precision what
constitutes “good cause.” One month after the Rhines decision, however, the Court stated that
“[a] petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily
constitute ‘good cause’ to excuse his failure to exhaust.” Pace v. DiGuglielmo, 544 U.S. 408,
416-17 (2005).
Since the Pace decision, district courts have reached different conclusions about whether
good cause in the Rhines context is akin to good cause to excuse procedural default in federal
court (which is a high standard because it allows the district court to consider the merits of a
defaulted claim) or a more expansive and equitable reading of good cause (which is a lower
standard that allows the claim to return to the state court for merits review). Compare
Hernandez v. Sullivan, 397 F. Supp.2d 1205, 1207 (C.D. Cal. 2005) (courts should look to
procedural default law to determine cause), with Rhines v. Weber, 408 F.Supp.2d 844, 848-49

(D.S.D. 2005) (Rhines II) (rejecting procedural default analysis for cause in exhaustion context).
Based in part on those different standards, some district courts have found that ineffective
assistance of post-conviction counsel constitutes good cause for failure to exhaust. See, e.g.,
Vasquez v. Parrott, 397 F.Supp.2d 452, 464-65 (S.D.N.Y. 2005); See also Rhines II.
There is no Tenth Circuit Court of Appeals decision that explains what constitutes “good
cause” in the context of a Rhines motion. The only circuit court to directly address whether the
good cause standard should be high or low is the Ninth Circuit. In Blake v. Baker, 745 F.3d 977
(9th Cir. 2014), the court followed Pace and Rhines II to find that good cause for a Rhines stay
cannot be any more demanding than a showing of cause for procedural default under Martinez v.
Ryan, 566 U.S. 1 (2012), and, in fact, may be less demanding.
In two recent cases in the United States District Court for the District of Utah, two district
court judges clarified “good cause” in the context of a Rhines motion. Lafferty v. Crowther, No.
2:07-CV-322, ECF No. 379 (D. Utah Oct. 30, 2015); Archuleta v. Crowther, No. 2:07-CV-630,
ECF No. 107 (D. Utah Nov. 12, 2014). Both courts found the analysis of Blake and Rhines II
persuasive because in the Rhines context a petitioner is returning to state court to allow the state
court to consider his claims. The Lafferty and Archuleta courts’ reasoning reflects the important
distinction between the “good cause” necessary to excuse the default of state claims, allowing for
federal review of a claim, and the “good cause” necessary to excuse the default of state claims,
allowing a petitioner to return to state court in order to afford the state court the first opportunity
to consider the claim. “Good cause” in the context of a stay and abeyance procedure is distinct in
that the federal court is not preventing the state court from reviewing a claim, rather it is deciding
whether a stay is permissible so that the state court can first review the claims before it is
presented in federal court.

The Blake court held that ineffective assistance of state post-conviction counsel can
establish good cause for failure to exhaust. “While a bald assertion [of ineffective assistance of
post-conviction counsel] cannot amount to a showing of good cause, a reasonable excuse,
supported by the evidence to justify a petitioner’s failure to exhaust, will.” Blake, 745 F.3d at
982. The judges in Archuleta and Lafferty agreed with the Blake court that “ineffective
assistance of post-conviction counsel may constitute good cause for failure to exhaust claims in
state court. Archuleta v. Crowther, No. 2:07-CV-630, ECF No. 107 at 9-10; Lafferty v.
Crowther, No. 2:07-CV-322, ECF No. 379 at 8.
The State argues that unless post-conviction counsel had some reason to believe that the
jury deliberations had been extraneously influenced, counsel’s performance could not have been
deficient for not interviewing the jurors. However, the only way that counsel could have
established reason to believe jurors’ deliberations had been extraneously influenced would be by
speaking with the jurors. The Supreme Court has held that a decision to cease investigation must
itself be based on a reasonable investigation. See Strickland v. Washington, 466 U.S. 668, 69091 (1984); Williams v. Taylor, 529 U.S. 396 (2000); Wiggins v. Smith, 539 U.S. 510, 533-34
(2003). Post-conviction counsel could not have made a reasonable strategic decision to limit
investigation of jurors because counsel had not conducted any investigation at all. Counsel filed
a perfunctory petition, failed to conduct even a cursory investigation of the case, including
failing to interview even a single juror, and admitted that none of these decisions were strategic.
See ECF No. 94 at 150-51, 156-60; ECF No. 94-1 Ex. 15; ECF No. 115 at 180-85; ECF No. 1151 Ex. 1 at ¶ 6; ECF No. 245 at 12, 15. State post-conviction counsel’s deficient performance
constitutes cause under Rhines.

B. Potentially Meritorious
For a federal case to be stayed, the unexhausted claims must be “potentially meritorious”
and not “plainly meritless.” Rhines, 544 U.S. at 277-78.
Kell argues that his claims are “potentially meritorious” because Rhines requires nothing
more than a showing that he raised a “colorable federal claim.” ECF No. 245 at 8. He argues
that the substance of his claims is not plainly meritless, and that state procedural rules are
irrelevant to the inquiry.
The State argues that this hurdle is less about the substance of a claim and more about the
procedural way that it would be presented to, and treated by, the state courts. The State argues
that Kell’s claims are plainly meritless within the meaning of Rhines because time and
procedural bars would prevent Kell from exhausting the merits of his claims in state court. ECF
No. 247 at 20.
The court in Lafferty, when addressing the identical argument—that Mr. Lafferty’s
claims were not potentially meritorious because they would be barred in state court—held the
following: “The Utah Supreme Court may agree with the state. It may not. But it is the state
court, not the federal court, that should determine the procedural posture of a claim.” Order,
Lafferty, 2:07-cv-322-DB, ECF No. 379 at 9. “Whether a state remedy is presently available is a
question of state law as to which only the state courts may speak with final authority.” Simpson
v. Camper, 927 F.2d 392, 393 (8th Cir. 1991). “[A] federal court always must be chary about
reaching a conclusion, based upon a speculative analysis of what a state court might do, that a
particular claim is procedurally foreclosed.” Pike v. Guarino, 492 F.3d 61, 74 (1st Cir. 2007). “If
the state court resolves the unexhausted claim on a procedural ground, such as a procedural bar
under state law, [then] the federal court will review that disposition, applying the standard of

review that is appropriate under the circumstances.” Fairchild v. Workman, 579 F.3d 1134, 1153
(10th Cir. 2009). Federalism and comity require that the state courts have the opportunity to
make those procedural decisions. Thus, in considering whether Kell’s claims are potentially
meritorious, this court will not address possible state court time and procedural bars, but will
leave the determination of the procedural posture of the claims to the state court.
1. Claim 3(D) is not potentially meritorious and therefore fails to meet the
Rhines requirement
Kell argues in claim 3(D) that his right to a fair and impartial jury was violated when the
jurors considered extraneous information and failed to adhere to the court’s instructions
regarding their discussion of matters presented at trial. The sources of the alleged extraneous
information were (1) “discussions between jurors regarding the content of the trial while the trial
was still in process,” and (2) “communications to the jurors from the CUCF [Central Utah
Correction Facility] staff regarding their opinions on the appropriate outcome for the trial and
dangerousness of Mr. Kell.” ECF No. 245 at 10. The court finds that claim 3(D) does not satisfy
the potentially meritorious prong of the Rhines analysis, because even if factually true, it does
not show that jurors were exposed to any improper extraneous information.
The court notes that under both the Utah Rules of Evidence and the Federal Rules of
Evidence, a juror “may not testify about any statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment.” Utah R. Evid. 606(b)(1); Fed. R. Evid.
606(b)(1). “The court may not receive a juror’s affidavit or evidence of a juror’s statement on
these matters.” Id. There is, however, an exception to this rule: a court may consider a juror’s
testimony about whether “extraneous prejudicial information was improperly brought to the
jury’s attention,” or whether “an outside influence was improperly brought to bear on any juror.”

Fed. R. Evid. 606(b)(2). The “extraneous influences exception covers only “misconduct such as
jurors reading news reports about the case, jurors communicating with third parties, bribes and
jury tampering.” United States v. Benally, 546 F.3d 1230, 1236 (10th Cir. 2008).
In Kell’s case, two of the jurors carpooled to and from the trial each day and sometimes
discussed the fact that the trial was giving them nightmares. ECF No. 94-1, Exhibits 5 and 11.
However, neither juror attests to discussing “the content of the trial.” They merely state that they
discussed how the content of the trial was giving them nightmares. Their nightmares, which
preceded their discussion, were mental impressions concerning the case. And the discussion
itself, between two jurors, was not an external influence; it was intrinsic. See U.S. v. Bassler,
651 F.2d 600, 601-2 (8th Cir. 1981) (holding that “[i]ntrinsic influences on a jury’s verdict,” such
as notes shared among jurors, “are not competent to impeach a verdict”). The jurors do not attest
that they had any pre-deliberation discussion about the trial evidence, but even if they did discuss
some of the content of the case, there is no indication of extrinsic influence being brought to bear
on any juror.
The second aspect of claim 3(D) is that there were communications to the jurors from the
CUCF staff regarding their opinions on the appropriate outcome for the trial. The source of this
claim was the declaration of one juror, who stated that “there was also community pressure to
sentence Kell to death. I knew people who worked at the prison. When I would enter the prison,
I understood the sentiment for a death sentence was strong among the prison guards that I
passed. All of the prison guards wanted the death sentence. All of them. A lot of people looked
at is [sic] as, ‘He killed somebody and he ought to be killed.’” ECF No. 94, Exhibit 10. The
juror does not say how he arrived at his conclusion. He attests only to his impression about the

sentiment among the security guards. As such, his testimony does not fall under any recognized
exception to Rule 606(b). Thus, the evidence supporting claim 3(D) is inadmissible.
A second juror stated: “Deputies escorted us to our vehicles because they were afraid
somebody might retaliate against us. I guess they thought we might be sniped or something.”
ECF No. 94, Exhibit 4. Neither of these jurors’ statements support the claim that prison staff
told or overtly communicated to the jurors their opinions about the proper outcome. Phrases like
“I understood,” “people looked at [us] as,” and “I guess they thought” make it clear that both of
these jurors were simply attesting to their impressions, which are speculative and inadmissible.
Neither of them attests to any actual communication by any prison staff member. As a result,
claim 3(D) fails to show error, much less a constitutional violation.
2. Claim 3(F) is potentially meritorious and therefore meets the second
prong of the Rhines analysis
In claim 3(F) Kell argues that a supplemental instruction to the jury by the trial court
judge unconstitutionally shifted the burden to him to prove that the jury should not impose death.
ECF No. 94 at 39. Three jurors recall the judge providing clarification for them on a point of
law during their sentencing deliberations. ECF No. 94, Exhibits 2, 5, 6. Specifically, one juror
stated:
I had a difficult time voting for the death penalty but I agreed to do so after Judge
Mower came and spoke to the jurors as we deliberated. He told us that Kell’s
attorneys had to show us that Kell’s life should be spared. The jury had bogged
down over a definition but the judge’s statement helped because we wanted to be
sure that we were doing the right thing. I remember that the judge was asked a
question while he was speaking to us, and he kidded around and said he couldn’t
address that question, and said that it was up to us. After the judge came and
spoke to us, I felt more comfortable voting for death.
ECF No. 94, Exhibit 5 at ¶ 2. That same juror also recalled that “[t]here was no defense attorney
present when the judge spoke to us during deliberations, though there was somebody with him.”

Id. at ¶ 3. There is no indication from the trial transcript of a question from the jury after the
beginning of the guilt or penalty deliberations. ROA at 5464-67, 5735-37, 5742.
Kell argues that the trial judge’s alleged instruction to the jury tainted the deliberation
process and unconstitutionally shifted the burden to him to prove that his life should be spared.
He also asserts that the judge’s alleged actions violated the Utah Rules of Criminal Procedure,
which state that if the jury “desire[s] to be informed on any point of law arising in the cause,” the
jury should “be brought before the court where, in the presence of the defendant and both
counsel, the court shall respond to the inquiry or advise the jury that no further instructions shall
be given,” or the court may “respond to the inquiry in writing, . . . and the response thereto shall
be entered in the record.” Utah R. Crim. P. 17(n). Kell argues that this was a prejudicial error of
constitutional magnitude, and that therefore, he has a colorable claim for state-court relief.
Counsel in Kell’s state habeas proceedings admitted that he was unaware of this issue
because he failed to speak with any of the jurors, and that there was no strategic reason for his
failure to do so. ECF No. 94, Exhibit 15 at ¶¶ 3, 4, 12, 14. Because counsel was unaware of the
issue, he failed to raise this claim to the state court, meaning that Kell has been denied the
opportunity to have this potentially significant claim reviewed by the state court. Counsel’s
failure to raise this potentially meritorious claim constitutes good cause under Rhines.
C. Intentionally Dilatory Litigation Tactics
The final Rhines requirement is that the petitioner show that he has not engaged in
“abusive litigation tactics or intentional delay.” Rhines, 544 U.S. at 277-78. This requirement
recognizes that “capital petitioners might deliberately engage in dilatory tactics to prolong their
incarceration and avoid execution of the sentence of death. Without time limits, petitioners could
frustrate AEDPA’s goal of finality by dragging out indefinitely their federal habeas review.” Id.

The State argues that Kell’s Rhines motion is dilatory, because it comes ten years into this
federal case and after his federal habeas petition has been submitted for decision on oral
argument. Although Kell notes that he has complied with the requirements of the Case
Management Schedule as agreed to by the parties and ordered by the court, the State argues that
the case management schedule did not prohibit Kell from asking for a Rhines stay earlier.
The court finds no indication that Kell has engaged in intentional or abusive dilatory
litigation tactics. Although federal habeas counsel was initially appointed in this case in 2007,
the federal proceedings were stayed and could not move forward because state proceedings were
still ongoing from that time until late 2012. In its order staying the federal proceedings, this
court found that Kell had filed a “protective federal habeas petition,” despite the pendency of
litigation in state court, in order to ensure compliance with the AEDPA statute of limitations.
ECF No. 51. Shortly after the state court proceedings concluded, Kell filed in this court his
Amended Petition for Writ of Habeas Corpus, which included for the first time claims 3(D) and
3(F). Kell noted in his Amended Petition that he would be filing a motion for a stay pursuant to
Rhines at the appropriate time. Two months later the parties entered into the stipulated Case
Management Schedule, in which they agreed to address discovery and an evidentiary hearing
prior to addressing other issues. ECF No. 97. Motions related to discovery and evidentiary
hearing were resolved on June 23, 2017 (ECF No. 238), and counsel filed this motion on August
28, 2017. The court does not find Kell to have engaged in intentional or abusive dilatory
litigation tactics.
III.

CONCLUSION

After carefully considering the arguments and claims before the court in Kell’s Motion to
Stay (ECF No. 245.), this court hereby grants a limited stay and abeyance only with respect to

Claim 3(F) of his Amended Petition so that he may properly exhaust that claim in the state court.
The court denies the motion with respect to Claim 3(D). Mr. Kell must commence his
proceedings in state court within thirty days of this order, and he shall provide the court with
status updates every three months. Mr. Kell must notify the court immediately upon the
resolution of the state court proceedings.
Also, the court authorizes the Public Defender of the District of Arizona to represent Kell
in state court proceedings pursuant to 18 U.S.C. § 3599, so that he may attempt to properly
exhaust Claim 3(F).
IT IS SO ORDERED.
DATED this 16th day of November, 2017.

BY THE COURT:

CLARK WADDOUPS
United States District Court Judge