Jones v. Ryan

          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 ...