Recent amendment and abeyance rulings in federal capital habeas cases
Posted on: 12/5/2013 08:49:20 AM by Peoples
In Robins v. Baker, 2013 WL 5947343 (D.Nev. Nov. 5, 2013), United States District Court Judge Larry R. Hicks granted Robins’ motion for permission to file a fourth amended habeas petition that included new claims for relief and an additional theory for relief on a previously raised claim.  Although federal habeas proceedings had been initiated in 1999, Judge Hicks found that Robins had made “a detailed, colorable showing that any delay . . . [could] be attributed to unprofessional conduct and ineffective representation of him by his former counsel” who had since been replaced by new counsel. Judge Hicks further found that Robins was entitled to a stay of federal proceedings in order to exhaust his new claims in state court.  In reaching this conclusion, Judge Hicks observed that “[i]f a stay is warranted with respect to any single claim, the court need not conduct a claim-by-claim analysis regarding the remaining claims.”  He concluded that a new claim of ineffective assistance of trial counsel for failing to challenge the cause of the victim’s death was “at least potentially meritorious,” justifying holding federal proceedings in abeyance.  Judge Hicks looked to Martinez v. Ryan in finding that ineffective assistance by state post-conviction counsel could provide cause to excuse Robins’ failure to earlier exhaust his claims.    

In Emil v. Baker, 2013 WL 6058064 (D. Nev. Nov. 15, 2013), United States District Court Judge Kent J. Dawson similarly found that federal habeas proceedings should be held in abeyance while a death row inmate returned for a second time to state court to exhaust his remedies.  Like Judge Hicks, Judge Dawson found that a stay was warranted if a single unexhausted claim was deemed potentially meritorious.  Here, a claim of coercion of the jury by the trial court was found of sufficient potential merit to justify the stay.  Emil had been represented in state post-conviction proceedings by the same attorney who had represented Robins.  This attorney was ultimately removed from Emil’s case and sanctioned by the Nevada Supreme Court.  Emil alleged that this attorney’s ineffectiveness excused the delay, along with a conflict by the Nevada Public Defender who had represented Emil in the federal habeas proceedings but was replaced by new counsel.  Again, like in Robins, Judge Dawson looked to Martinez v. Ryan in finding that Emil’s allegations sufficed to excuse his failure to earlier raise the claim.

In Moore v. Baker, 2013 WL 6158505 (D. Nev. Nov. 21, 2013), United States District Court Judge James C. Mahan granted Moore’s request for abeyance.   Moore was found to have established good cause for the stay by alleging that the evidence supporting his new claim of Brady and Giglio violations had been withheld by the state and only recently discovered.  Judge Mahan further concluded that “[b]ecause the claim provides Moore with at least some chance of habeas relief, [it] satisfies the ‘potentially meritorious’ standard in Rhines [v. Weber].”

In Bryant v. Byars, 2013 WL 6162400 (D. S.C. Nov. 22, 2013), United States Magistrate Judge Shiva v. Hodges granted Bryant’s request for abeyance, rejecting respondent’s argument that a stay was not appropriate because the unexhausted claims would be found by the state court to be procedurally barred.  Magistrate Judge Hodges concluded that it was unclear whether state remedies were in fact unavailable to Bryant and that it was best to let the state post-conviction court make that determination.  Magistrate Judge Hodges further found that Bryant’s allegation that original post-conviction counsel was ineffective in failing to raise the unexhausted claims provided good cause for abeyance.

In Jablonski v. Chappell, 2013 WL 6173780 (N.D. Cal. Nov. 25, 2013), United States District Judge Susan Illston granted Jablonski’s renewed motion for abeyance of the federal habeas proceedings.  Judge Illston did not decide whether Jablonski’s allegation that state habeas counsel’s ineffectiveness in raising trial counsel’s ineffectiveness provided good cause for the stay.  Instead, she concluded that the Supreme Court’s decision in Cullen v. Pinholster sufficed to establish cause for Jablonski’s failure to earlier raise the claims.  She reasoned that Pinholster, although not altering the definition of exhaustion, did significantly tighten the exhaustion requirement by imposing a new obligation with which a habeas petitioner must comply to obtain de novo review of his claims in federal court.  In addition to granting abeyance, Judge Illston authorized counsel, the Federal Public Defender of the District of Arizona, to represent Jablonski in state exhaustion proceedings. 

In Smith v. Chappell, 2013 WL 6199547 (N.D. Cal. Nov. 27, 2013), United States District Court Judge Jeffrey S. White denied Smith’s request that federal proceedings be stayed in order for Smith to return to state court a second time to reraise previously exhausted claims to which he had attached additional factual support to his federal habeas traverse.  Judge White assumed without deciding that the addition of the new declarations rendered the claims unexhausted.  In determining that Smith failed to establish good cause for abeyance, Judge White rejected Smith’s argument that lack of funding by the state court prevented Smith from factually developing his claims.  Judge White pointed out that this same lack of funding had justified the initial abeyance after federal funding had been used for development.  Notably, Smith did not contend that inadequate federal funding had precluded him from presenting his new facts at an earlier time.  Judge White also found an indication of intentionally dilatory litigation tactics given Smith’s failure to fully develop the factual basis for his claims before seeking abeyance the first time.  Rather than dismiss the claims, as requested by respondent, Judge White ruled that he would allow them to proceed but would not consider the new facts that had been presented with the traverse.