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)

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:

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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

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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

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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

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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.)

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IT IS SO ORDERED.
DATED this 8th day of February, 2018.
BY THE COURT:

CLARK WADDOUPS
United States District Court Judge

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