Kell v. Turley

Filing 279

MEMORANDUM DECISION and ORDER denying 261 Motion to Amend/Correct. See order for details. Signed by Judge Clark Waddoups on 02/08/2018. (kpf)

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UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION TROY MICHAEL KELL, MEMORANDUM DECISION AND ORDER Plaintiff, v. 2:07-CV-00359-CW SCOTT CROWTHER, WARDEN, UTAH STATE PRISON; District Judge Clark Waddoups Defendant. On November 16, 2017, the court, in a written order, granted Mr. Kell a limited stay and abeyance only with respect to Claim 3(F) of his Amended Petition so that he could properly exhaust that claim in state court. (ECF No. 258.) The court found that under Rhines v. Weber, 544 U.S. 269 (2005), Kell had shown a potentially meritorious claim, good cause for the stay and that his tactics were not abusive or dilatory. When addressing the good cause element, however, the court noted a lack of agreement on what that term means, and a lack of controlling Tenth Circuit precedent. The court’s decision was not a final appealable decision, and the State now seeks certification under 28 U.S.C. § 1292(b) to pursue interlocutory appellate review of the following legal question: What “good cause” standard must a federal habeas petitioner satisfy to obtain a stay-and-abeyance of federal habeas proceedings under Rhines v. Weber, 544 U.S. 269 (2005)? Title 28 of the United States Code addresses the court of appeals’ limited appellate jurisdiction over interlocutory decisions. Respondent relies on a subpart of 28 U.S.C. § 1292, which sets forth an exception to the general rule that interlocutory decisions are not appealable: 1 When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. 28 U.S.C. § 1292(b) (emphasis added). The decision to grant certification lies within the sound discretion of the district court. A. Controlling Question of Law In order to obtain interlocutory review under § 1292(b), Respondent must point to “a controlling question of law about which there is substantial ground for difference of opinion.” Mere disagreement with the court’s ruling is insufficient. See United States v. Grand Trunk W.R.R, 95 F.R.D. 463, 471 (W.D. Mich. 1981). The State asserts that this court’s Rhines ruling identified and resolved “a controlling question of law”—the meaning of “good cause” under Rhines. The State notes that without deciding what the term meant and that Kell had met the standard, the court could not have granted Kell’s Rhines motion. Although Kell argues that the court did not explicitly articulate a standard in its Memorandum Decision and Order, a close look at the order shows that the court adopted the lower Blake standard. The court noted that ineffective assistance of post-conviction counsel would satisfy Rhines good cause only under Blake’s lower standard, and then found that “post-conviction counsel’s deficient performance” in Kell’s case “constitutes cause under Rhines.” (ECF No. 258 at 5.) The parties agree that “controlling question[s] of law” under § 1292(b) include questions that (1) are “serious to the conduct of the litigation, either practically or legally,” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974); (2) could “affect the ability of the district court to render a binding decision” or “materially affect the outcome of the litigation in the district 2 court,” In re Cement Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir. 1981); or (3) “might save time for the district court, and time and expense for the litigants,” Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991). This court’s good cause determination, and the resulting stay, fits each of these. First, the court must consider whether its decision to grant a limited stay as to claim 3(F) is serious to the conduct of the litigation, either practically or legally. Kell argues that it has no bearing on the court’s ability to substantively decide his claims (citing In re Cement Antitrust Litig., 673 F.2d 1020, 1027 (9th Cir. 1981)). He argues that a stay order “merely regulate[s] the course of the proceedings” (citing Swanson v. DeSantis, 606 F.3d 829, 932 (6th Cir. 2010)). The court disagrees. The Rhines order clearly bears on this court’s ability to reach claim 3(F) because, without a stay that enables Kell to exhaust the claim, it remains unexhausted and beyond merits review. The court’s order permits Kell to exhaust the claim and then present it in this court for merits review. Whether Kell met the Rhines “good cause” standard thus has a substantial effect on this court’s ability to reach the merits of Kell’s claim. For this reason the question could “materially affect the outcome of the litigation in the district court.” In re Cement Antitrust Litig., 673 F.2d at 1027. Thus, the question of what constitutes good cause under Rhines is a controlling question of law. B. Substantial Ground for Difference of Opinion The standard for a substantial ground for difference of opinion is met “where ‘the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.’” Couch v. Telescope, Inc., 611 F.3d 629 (9th Cir. 2010) (internal citation omitted). The State fails to meet this requirement. While this court recognized that some 3 district courts have reached different conclusions about what is required to show good cause for a Rhines stay (see ECF No. 258, at 3), the decisions in this district which have addressed the issue have predominantly applied the standard adopted in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014) and Rhines v. Weber, 408 F.Supp. 844, 848-49 (D.S.D 2005) (Rhines II). Some of these courts have granted stays based on that standard (see, e.g., Archuleta v. Crowther, No. 2:07-CV630, ECF No. 107 (D. Utah, Nov. 12, 2014); and Taylor v. Turley, No. 2:07-CV-194, ECF No. 45 (D. Utah, Feb. 14, 2008)), while others have adopted the standard but have denied the stay for other reasons, see, e.g., Lafferty v. Crowther, No. 2:07-CV-322, ECF No. 379 (D. Utah, Oct. 30, 2015); and Honie v. Crowther, 2:07-CV-628, ECF No. 120 (D. Utah, Dec. 13, 2017). One Utah case, Carter v. Friel, 415 F.Supp.2d 1314 (D. Utah 2006), followed Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1207 (C.D. Cal. 2005), a case in which the district court reached a different conclusion about the good cause standard. In the absence of other guidance, the Hernandez court found an analogy to the standard applied in procedural default cases and applied what it referred to as an objective standard. But as this court observed, the Hernandez analysis was subsequently rejected by the Ninth Circuit in Blake. Although Carter, which was decided only a year after Rhines, followed Hernandez, the court did not have the benefit of the later analysis by the Ninth Circuit in Blake. No court in this district has since followed Carter. Moreover, the Carter court, upon remand from the Tenth Circuit, recently granted a Rhines stay in the same case to allow Carter to exhaust some of his claims in state court. Carter v. Crowther, 2:02-CV-326, ECF No. 576, 2016 WL 843273 (D. Utah, March 1, 2016). Thus, the present state of the law is that in this district the predominant trend is to follow the Blake good cause standard. Given this trend, there is not sufficient basis to find a difference of opinion on which standard should apply. The State also fails to cite to a difference among the 4 circuits. There is not a substantial disagreement among any binding authorities that a standard other than the one applied by the court in this case should apply. Under these precedents, there is no substantial ground for an interlocutory appeal. C. Materially advance the ultimate termination of the litigation Having found no substantial ground for difference of opinion, this court need not consider whether an immediate appeal from the Rhines order “may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). However, it does not appear that an immediate appeal would necessarily materially advance the termination of the litigation. This court granted “a limited stay and abeyance only with respect to Claim 3(F)” of Mr. Kell’s Amended Petition. (ECF No. 258 at 11-12 ) (emphasis in original). The court did not grant a stay with respect to any other claim in the petition. So while Mr. Kell returns to state court to exhaust Claim 3(F), this court will move forward in deciding the remainder of Mr. Kell’s claims. The only way that an interlocutory appeal would advance the ultimate termination of the litigation, is if the Tenth Circuit were to decide the “good cause” standard differently than this court did, and if Kell were unable to prove good cause under the different standard, meaning he would not be entitled to a Rhines stay, so the entire petition could be decided immediately. See Rhines, 544 U.S. at 276–78. If the stay order were affirmed, on the other hand, “the interlocutory appeal would have delayed the ultimate termination of this case rather than advanced it.” See Valdovinos v. McGrath, 2007 WL 2023505 at *4 (N.D.Cal. July 12, 2007). For the above reasons, the court hereby DENIES Respondent’s Motion to Amend Rhines Order to Include Certification Under 28 U.S.C. § 1292(b). (ECF No. 261.) 5 IT IS SO ORDERED. DATED this 8th day of February, 2018. BY THE COURT: CLARK WADDOUPS United States District Court Judge 6

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