United States District Court, D. Arizona
ORDER
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.
Pending
before the Court are Respondents' Motion to Stay Court
Order of July 31, 2018 (Doc. 308), [2] and Petitioner's
Cross-Motion for Release Pursuant to Federal Rule of
Appellate Procedure 23(c) (Doc. 311). Both motions are fully
briefed (Docs. 311, 319, 321). For the reasons that follow,
Respondents' motion is DENIED and Petitioner's motion
is DENIED without prejudice. The Court intends to enforce its
order of July 31, 2018, (Doc. 299 (“Order”)),
unless Respondents initiate retrial proceeding by October 29,
2018 and actually commence retrial by March 13, 2019.
I.
BACKGROUND
Petitioner
Barry Lee Jones is a state prisoner under sentence of death.
In 2001, Petitioner filed a Petition for Writ of Habeas
Corpus (“Petition”). The Court denied the
Petition, finding Claim 1D, a guilt and penalty-phase
ineffective assistance of counsel (“IAC”) claim,
procedurally defaulted. The Ninth Circuit Court of Appeals
remanded Claim 1D for reconsideration in light of the
procedural exception established in Martinez v.
Ryan, 566 U.S. 1 (2012). (Doc. 158.) On July 31, 2018,
following a seven-day evidentiary hearing, the Court
concluded that Petitioner had established cause to excuse the
procedural default of his meritorious guilt-phase IAC claim
and issued a conditional writ directing the State to release
or initiate retrial proceedings of Petitioner within 45 days
and actually commence retrial in 180 days. (Doc. 299.)
Judgment was entered accordingly (Doc. 300), and, on August
15, 2018, Respondents filed a notice of appeal to the Ninth
Circuit. (Doc. 302.) Both deadlines in the conditional writ
were extended once, by joint request, for 45 days. (Doc.
301.)
On
September 12, 2018, Respondents filed a motion to stay the
conditional writ. (Doc. 308.) On September 24, 2018,
Petitioner filed a motion for his release pending appeal.
(Doc. 311.) The Court referred the matter to the United
States Pretrial Services Agency (“Pretrial
Services”) for an investigation and recommendation as
to appropriate conditions for Petitioner's potential
release. (Doc. 313.) Pretrial Services submitted a report to
the Court and the parties on October 10, 2018. The motions
were heard on October 12, 2018, at which time the Court
denied the motion for a stay, and denied Petitioner's
motion for release without prejudice on the record in court.
This written order follows.
II.
LEGAL STANDARD
A.
Motion for Stay
Courts
have broad discretion to condition judgments granting habeas
relief as “law and justice require, ” and thus
may delay release for a time to allow the State the
opportunity to correct the constitutional violation.
Hilton v. Braunskill, 481 U.S. 770, 775 (1987)
(quoting 28 U.S.C. § 2243). If the State appeals the
final judgment instead of initiating proceedings to correct
the constitutional error, it may seek a stay of the
petitioner's release by filing an appropriate motion in
the district court prior to the deadlines imposed in a
conditional writ. See Fed. R. Civ. P. 62(c) (court
may issue injunction pending appeal); Fed. R. App. P.
8(A)(1)(a) (party ordinarily moves first in the district
court for a stay of the judgment); cf. Hilton, 481
U.S. at 775 (explaining that the language of Rule
23(c)-governing release of successful habeas petitioners
pending appeal-allows broad discretion in considering whether
a judgment granting habeas relief should be stayed pending
appeal).
The
Supreme Court has set forth the following factors a court
should consider in determining whether to stay its decision
or to release a successful habeas petitioner pending appeal:
“(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Hilton,
481 U.S. at 776. The questions whether to stay the decision
granting habeas corpus relief and whether to release the
prisoner pending appeal are “mirror images” of
each other. Franklin v. Duncan, 891 F.Supp. 516, 518
(N.D. Cal 1995). The Ninth Circuit has explained that the
test “represent[s] the outer reaches of a single
continuum.” Golden Gate Rest. Ass'n v. City
& Cty. of San Francisco, 512 F.3d 1112, 1115-16 (9th
Cir. 2008) (quoting Lopez v. Heckler, 713 F.2d 1432,
1435 (9th Cir. 1983)). “At one end of the continuum,
the moving party is required to show both a probability of
success on the merits and the possibility of irreparable
injury.” Id. (quoting Natural Res. Def.
Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir.
2007)). “At the other end of the continuum, the moving
party must demonstrate that serious legal questions are
raised and that the balance of hardships tips sharply in its
favor.” Id. at 1116 (quoting Lopez,
713 F.2d at 1435). “These two formulations represent
two points on a sliding scale in which the required degree of
irreparable harm increases as the probability of success
decreases.” Id. (quoting Winter, 502
F.3d at 862). Further, courts “consider ‘where
the public interest lies' separately from and in addition
to” irreparable injury. Id. (quoting
Winter, 502 F.3d at 863).
B.
Motion for Release
In
considering a motion for release of a petitioner pending
appeal of a successful habeas petition a court should be
guided by the language of Rule 23(c) of the Federal Rules of
Appellate Procedure, in addition to the traditional stay
factors. Rule 23(c) creates a presumption in favor of release
of a habeas petitioner who prevails in district court,
pending appeal.[1] Fed. R. App. P. 23(c). The Rule 23(c)
presumption “may be overcome if the traditional stay
factors tip the balance against it.” Hilton,
481 U.S. at 777. In addition to the traditional standards
governing stays of civil judgments, a court may consider
other factors such as: (1) the possibility the habeas
petitioner will flee if released pending appeal, (2) the risk
the petitioner may pose to the public, (3) the state's
interest in continuing custody and rehabilitation pending
resolution of the appeal, and (4) the petitioner's
substantial interest in release pending appeal. Id.
at 777-78.
III.
MOTION FOR STAY
A.
Likelihood of Success on the Merits
Respondents
assert they are likely to succeed on the merits of their
appeal, highlighting three issues for the Court's review:
(1) the Court ordered an evidentiary hearing on
Petitioner's claim in conflict with Supreme Court
precedent interpreting 28 U.S.C. § 2254(e)(2) in the
context of ineffective counsel; (2) the Court misapplied
Arizona law by granting relief on Count Four, and (3) the
Court erred in its Strickland analysis by failing to apply
Strickland deference and the presumption of competence and by
engaging in an incorrect prejudice analysis.
1.
Evidentiary Hearing
Addressing
the first traditional stay factor, Respondents argue that
they are likely to succeed on their appeal because the Court
erred in resolving a potentially case-dispositive question of
law and in making certain factual findings.
First,
Respondents argue the Court erroneously found that “if
Petitioner can demonstrate cause and prejudice under
Martinez to excuse the procedural default of Claim
1D, he is entitled to an evidentiary hearing on the merits to
the extent such a hearing is necessary to resolve any
disputed issues of fact” (Doc. 185 at 32). Respondents
acknowledge that Petitioner is allowed, under the Ninth
Circuit's ruling in Dickens v. Ryan, 740 F.3d
1302, 1321-22 (9th Cir. 2014) (en banc), to develop evidence
for the purpose of demonstrating that cause exists to excuse
a procedural default, but argue that, unless the Petitioner
can also satisfy the requirements of §2254(e)(2),
Petitioner may not support the merits of the underlying IAC
claims with new evidence. At its core Respondents'
argument is that, under Martinez, a petitioner may
conduct extensive lengthy and expensive discovery, be
permitted a full hearing on the substantiality of an IAC
claim, and successfully demonstrate the ineffectiveness of
both PCR and trial counsel, only to have the claim itself
denied because the Court's discretion to hold an
evidentiary hearing to resolve disputed issues of material
fact is circumscribed by § 2254(e)(2). The Court
disagrees.
Respondents'
reliance on Cullen v. Pinholster, 563 U.S. 170,
185-86 (2011) to support their position is mistaken. As this
Court previously stated, “[t]he evidentiary limitations
described in [Pinholster], . . . do not apply to
Petitioner's procedurally defaulted ineffective
assistance claims because they were not previously
adjudicated on the merits by the state courts.” (Doc.
185 at 31) (citing Dickens, 740 F.3d at 1320-21
(rejecting the State's argument that Pinholster
bars the federal court's ability to consider new evidence
where the petitioner successfully shows cause to overcome the
procedural default)). Citing Pinholster, 563 U.S. at
185-86, Respondents incorrectly state that, because the claim
was not resolved on the merits in state court, §
2254(e)(2) requires such evidence to be excluded when
examining the merits of a procedurally defaulted claim. This
is an incorrect reading of Pinholster, which held
that “review under § 2254(d)(1) is
limited to the record that was before the state court that
adjudicated the claim on the merits.” 563 U.S. at 181
(emphasis added). Unlike the district court in
Pinholster, which was required to conduct a
“backward-looking” examination of the state-court
decision at the time it was made, this Court has conducted a
de novo review of Petitioner's claim because it
was never raised in state court. Pinholster has no
application here where there has never been any adjudication
of the merits of the claim. Consequently, Respondents'
argument in this regard is highly unlikely to succeed.
Next,
Respondents next assert that there exists tension between
this Court's decision and the Supreme Court's
application of § 2254(e)(2) in the pre-Martinez
decisions in Holland v. Jackson, 542 U.S. 649 (2004)
(negligence of state post-conviction counsel “is
chargeable to the client and precludes relief unless the
conditions of § 2254(e)(2) are satisfied”) and
Williams v. Taylor, 529 U.S. 420, 437-40 (2000)
(denying evidentiary hearing of Brady claim because
post-conviction counsel's failure to investigate and
locate a psychiatric report showed a lack of diligence and
amounted to a failure to develop the facts under §
2254(e)(2)). The Court explained in Pinholster that
a federal habeas court has discretion to take new evidence in
an evidentiary hearing “when deciding claims that were
not adjudicated on the merits in state court, ” and
that discretion has limits, it is not, as Respondents, assert
prohibited by § 2254(e)(2). Pinholster, 563
U.S. at 186. “Provisions like [§ 2254(e)(2)]
ensure that ‘federal courts sitting in habeas are not
an alternative forum for trying facts and issues which a
prisoner made insufficient effort to pursue in state
proceedings.” Pinholster, 563 U.S. at 186
(citing Williams, 529 U.S. at 427). To the extent
there is “tension” between these cases and
Court's ruling, this case is easily distinguished.
Under
§ 2254(e)(2), if a court determines that a petitioner
has not been diligent in establishing the factual basis for
his claims in state court it may not conduct a hearing unless
the petitioner satisfies one of § 2254(e)(2)'s
narrow exceptions, which are not relevant to this case. If,
however, “there has been no lack of diligence at the
relevant stages in the state proceedings, the prisoner has
not ‘failed to develop' the facts under §
2254(e)(2)'s opening clause, and he will be excused from
showing compliance with the balance of the subsection's
requirements.” Williams, 529 U.S. at 437. In
Williams, a pre-Martinez decision, the
Supreme Court found that a lack of diligence,
“attributable to the prisoner or the prisoner's
counsel, ” would establish a failure to develop the
factual basis of the claim. Id. at 432.
In
allowing Petitioner to develop and present new evidence in
support of Claim 1D this Court concluded that if Petitioner
can demonstrate he is not at fault for failing to bring the
claim, and his procedural default is excused under
Martinez, he is by extension not at fault for
failing to develop the claim under § 2254(e)(2). (Doc.
185 at 33.) The Court is not alone in reaching this
conclusion. Notably, the plurality in Detrich v.
Ryan, 740 F.3d 1237, 1247-1248 (9th Cir. 2013) (en
banc), suggested that it “makes little sense” to
apply § 2254(e)(2) at all to an IAC claim underlying a
Martinez motion because:
. . . newly discovered evidence standard is not an apt source
from which to draw a prejudice standard for ineffectiveness
claims. The high standard for newly discovered evidence
claims presupposes that all the essential elements of a
presumptively accurate and fair proceeding were present in
the proceeding whose result is challenged. An ineffective
assistance claim asserts the absence of one of the critical
assurances that the result of the proceeding ...