Kell v. Turley

Filing 321

MEMORANDUM DECISION AND ORDER granting 312 Motion to Lift Rhines Stay: The Rhines stay is hereby lifted. The court will allow Mr. Kell 28 days to amend Claim 3(F) of his Amended Petition to the extent that any sig nificant legal changes have transpired since the currently operative petition was filed. The Government will then have 28 days to amend its response to Claim 3(F). And Mr. Kell will then have 14 days to reply to the Government's response. Becau se the remainder of Mr. Kell's federal habeas petition has been fully litigated, briefed, and submitted for decision after oral argument in 2017, this court will then move forward in ruling on the amended petition. Signed by Judge Howard C. Nielson, Jr on 2/7/24. (dle)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

TROY MICHAEL KELL,
Plaintiff,
v.

BART MORTENSEN,
Warden of the Utah State Prison,1
Defendant.

MEMORANDUM DECISION
AND ORDER
2:07-CV-00359-HCN
Howard C. Nielson, Jr.
United States District Judge

Over six years ago, on November 16, 2017, this court issued a stay and abeyance in the
above-captioned federal habeas corpus proceeding, pending exhaustion of one of Troy Kell’s
claims in state court. See Dkt. No. 258. Mr. Kell filed a state post-conviction petition, which the
state district court dismissed. On December 21, 2023, the Utah Supreme Court denied Mr. Kell’s
appeal of that dismissal, thus concluding the state court proceedings. Because Mr. Kell has
litigated his unexhausted claim through the highest state court, the Utah Supreme Court, the
purpose for the stay has now ended. Therefore, this court hereby lifts the stay.
Mr. Kell now asks this court to order the parties to meet and confer about developing a
briefing schedule. See Dkt. No. 310 at 2. He argues that when a Rhines stay is lifted after
exhaustion in state court, it is customary and appropriate for the petitioner to file an amended
petition and for the parties to meet and confer about a timeline for briefing the amended
pleading. According to Mr. Kell, this allows the parties to update recently exhausted claims to

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Pursuant to Federal Rule of Civil Procedure 25(d), Bart Mortensen is substituted for his
predecessor, Robert Powell.

reflect the procedural and factual findings of the state court. It also allows the petitioner to
present supplemental legal arguments pertinent to the state court’s findings and address any
material changes in the law occurring during pendency of the state court litigation. While this is
true, only limited additional briefing is warranted in this case.
Background
As the State points out, this crime’s facts are not in dispute: in 1994—nearly thirty years
ago—a prison videotape captured avowed white supremacist Troy Kell stabbing African
American and fellow inmate Lonnie Blackmon sixty-seven times in the eyes, face, neck, and
back, until he bled to death. Mr. Kell was already serving a life-without-parole sentence for
murder when he killed Blackmon. See generally State v. Kell, 61 P.3d 1019 (Utah 2002) (Kell I).
A jury convicted Mr. Kell of capital murder and sentenced him to death, and the Utah
Supreme Court affirmed his conviction and sentence. See id. The Utah Supreme Court later
affirmed the denial of Mr. Kell’s state post-conviction petition. See Kell v. State, 194 P.3d 913
(Utah 2008) (Kell II). Mr. Kell then filed a Rule 60(b) motion to set aside the post-conviction
judgment.
In 2009, Mr. Kell filed a federal habeas petition in this court raising thirty-two claims for
relief that mirrored claims in Mr. Kell’s state rule 60(b) motion. See Dkt. No. 36. Shortly
afterward, Mr. Kell sought, and received, his first stay of this case under Rhines v. Weber, while
he pursued rule 60(b) relief in the state courts. See Dkt. No. 40-41, 51. In 2012 the Utah Supreme
Court affirmed the denial of Mr. Kell’s rule 60(b) motion to set aside the post-conviction
judgment. See Kell v. State, 285 P.3d 1133 (Utah 2012) (Kell III). Mr. Kell returned to this court,
and the Rhines stay was lifted.

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Mr. Kell filed his Amended Petition for writ of Habeas Corpus in this court on January
14, 2013. See Dkt. No. 94. The Government filed its Response on September 3, 2013. See Dkt.
No. 106. And Mr. Kell filed his Reply on January 24, 2014. See Dkt. No. 115. The Amended
Petition has been comprehensively briefed, including the issue of whether the State’s procedural
bars in the Postconviction Remedies Act are independent and adequate. See Dkt. No. 106 at 2022; Dkt. No. 115 at 8-13.
In April 2014, Mr. Kell moved for discovery to support ten claims in his petition,
including four sub-claims that he conceded were unexhausted. See Dkt. No. 126 at 28
(acknowledging that claims 15(E), 15(P), 17(B), and 17(C) “were not adjudicated on the merits
in state court”). In December 2014, this Court granted Mr. Kell’s motion on all but one of the
claims for which he sought discovery. See Dkt. No. 143. Discovery lasted over two years, while
Respondent and the Utah Department of Corrections provided Mr. Kell’s counsel “several
thousands of pages” that included sensitive materials, responded to interrogatories and other
discovery requests, and defended depositions. Dkt. No. 170 at 2-3; see generally Dkt. Nos. 174204.
In 2017, after discovery closed, Mr. Kell filed a motion for an evidentiary hearing on six
claims in his federal petition, including claims that he had not exhausted in state court. See Dkt.
No. 206. Two months later, after hearing argument on Mr. Kell’s motion for an evidentiary
hearing, this Court denied it from the bench. The court then set a hearing on Mr. Kell’s amended
federal habeas petition. See Dkt. No. 236.
The court held the hearing on the Amended Petition on August 11, 2017. See Dkt. Nos.
243, Dkt. 252. At this hearing the court confirmed that Mr. Kell had withdrawn the following
claims from the petition: Three (A), (B), and (C); Four; Seven; Ten; Thirteen (A) and (B);

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Fifteen (B), (C), (D), (H), (J), (M) and (O); Seventeen (F) and (J); Eighteen; Twenty-One; and
Twenty-Two (B), (E) and (F). See Dkt. No. 243.
The court also heard discussion and argument on claims it believed to be technically
exhausted and procedurally defaulted, specifically Mr. Kell’s arguments that claims Three (D)
and Three (F) should not be treated as exhausted and should be the subject of an additional
Rhines motion, and that the following claims should be treated as exhausted but not procedurally
defaulted: Seventeen (G) and Twenty-Two (C) that were raised in Mr. Kell’s state Rule 60(B)
motion, and Thirteen (E) and (G) and Twenty-Five (F) that were raised in Mr. Kell’s direct
appeal. Neither party presented argument on a number of claims that the court had identified as
being procedurally barred and thus procedurally defaulted.
Finally, the court heard discussion and argument on the merits of Mr. Kell’s exhausted
claims, specifically Claims One, Five, and Twenty-Five (C). Claims Six, Thirteen, and Nineteen
(C), (D), and (F) were submitted on the briefing. The court then took the matter under
submission and said that it would issue a written ruling on the petition.
Shortly thereafter, Mr. Kell filed a written motion for a Rhines stay so that he could
return to state court to exhaust claims 3(D) and 3(F). See Dkt. No. 245. On November 16, 2017,
this court denied Mr. Kell a stay on claim 3(D), but granted “a limited stay and abeyance only
with respect to Claim 3(F) of [Mr. Kell’s] Amended Petition, so that he [might] properly exhaust
that claim in the state court.” Dkt. No. 258 (emphasis in the original). The court ordered to notify
it immediately upon the resolution of the state court proceedings.
In 2018, Mr. Kell filed a petition for postconviction relief on claim 3(F) in state court.
Later that year the state district court denied Mr. Kell postconviction relief, ruling that the claim
was both time-barred and procedurally barred under Utah’s Postconviction Remedies Act. On

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December 21, 2023, the Utah Supreme Court affirmed the denial of postconviction relief on Mr.
Kell’s petition, determining that Mr. Kell “sat” on his claim for over five years before presenting
it to the state courts, and it was both time-barred and procedurally-barred under Utah’s
Postconviction Remedies Act (PCRA). Kell v. State, 2023 UT 37, ___ P.4th ___, ¶41.
The parties have already litigated—in both briefing and oral argument—Mr. Kell’s
challenges to the independence and adequacy of the PCRA’s time and procedural bars and his
arguments that Martinez and Trevino should excuse his procedural default. See Dkt. No. 106 at
20-22,26-39 (Respondent’s response to petition); Dkt. No. 115 at 8-23 (Mr. Kell’s reply); Dkt.
No. 206 at 5-7 (Mr. Kell’s motion for evidentiary hearing); Dkt. No. 227 at 7-27 (Respondent’s
opposition to motion for evidentiary hearing); Dkt. No. 232 (Mr. Kell’s reply); Dkt. No. 236
(minute entry); Dkt. No. 243 (minute entry).
The 2017 Order Granting in Part and Denying in Part Petitioner’s Motion to Stay made it
clear that the court was granting “a limited stay and abeyance only with respect to Claim 3(F) of
his Amended Petition, so that [Mr. Kell] may properly exhaust that claim in the state court.” Dkt.
No. 258 at 12. Mr. Kell has exhausted the claim and returned to this court. The only briefing that
Mr. Kell is entitled to is related to Claim 3(F). This court will allow him to amend Claim 3(F) to
the extent that any significant legal changes have transpired since the currently operative petition
was filed. The court will not allow briefing that is repetitive, cumulative or that serves only to
delay these federal proceedings.
As the Government correctly noted, AEDPA is meant “to reduce delays in the execution
of state and federal criminal sentences” based on the “well-recognized interest in the finality of
state judgments.” Rhines v.Weber, 544 U.S. 269, 276 (2005). The United States Supreme Court
has recently confirmed that “a federal habeas court may never ‘needlessly prolong’ a habeas case

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. . . particularly given the ‘essential’ need to promote the finality of state convictions.” Shinn v.
Ramirez, 596 U.S. 366, 390 (2022) (quoting, in order of internal quotations, Cullen v. Pinholster,
563 U.S. 170, 209 (Sotomayor, J. dissenting); Calderon v. Thompson, 523 U.S. 539, 555 (1998);
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).
Conclusion
The Rhines stay is hereby lifted. The court will allow Mr. Kell 28 days to amend Claim
3(F) of his Amended Petition to the extent that any significant legal changes have transpired
since the currently operative petition was filed. The Government will then have 28 days to
amend its response to Claim 3(F). And Mr. Kell will then have 14 days to reply to the
Government’s response. Because the remainder of Mr. Kell’s federal habeas petition has been
fully litigated, briefed, and submitted for decision after oral argument in 2017, this court will
then move forward in ruling on the amended petition.
IT IS SO ORDERED.
DATED this 7th day of February, 2024.
BY THE COURT:

Howard C. Nielson, Jr.
United States District Court Judge

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