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Cunningham v. Kelly

United States District Court, D. Oregon

November 8, 2019

CLINTON CUNNINGHAM, Petitioner,
v.
BRANDON KELLY, Superintendent, Oregon State Penitentiary, Respondent.

          C. Renee Manes and Oliver W. Loewy, Assistant Federal Public Defender, Office of the Federal Public Defender, Of Attorneys for Petitioner.

          Ellen F. Rosenblum, Attorney General, James M. Aaron, Joathan N. Schildt, and Timothy A. Sylwester, Assistant Attorney General, Department of Justice, Of Attorneys for Respondent.

          OPINION AND ORDER

          MICHAEL H. SIMON, DISTRICT JUDGE.

         Petitioner moves the Court pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005), to stay this federal death penalty habeas action and hold it in abeyance while he returns to state court to raise and exhaust constitutional claims arising out of the Oregon Legislature's recent passage of SB 1013 and other newly developed law and research.[1] Among other claims, Petitioner seeks to exhaust in state court a claim alleging that because his crimes of conviction are no longer subject to the death penalty in Oregon, his death sentence now violates his constitutional rights under the Eighth Amendment to be free from cruel and unusual punishment and a claim alleging that the determination by the legislative and executive branches to remove the future dangerousness question constitutes an admission of the constitutional infirmities presented by that question. Respondent opposes Petitioner's motion on the basis that his proposed claims are either already exhausted or plainly meritless.

         Petitioner timely filed his initial Petition in this federal case on October 18, 2005, but shortly thereafter the Court granted his unopposed motion to stay the case pending resolution of his state court post-conviction action. Following a lengthy stay, Petitioner timely filed his Amended Petition on November 29, 2017. Since then, the parties have partially briefed issues of exhaustion and procedural default. Petitioner's sur-response on those issues was due on September 23, 2019. Instead of filing that brief, however, he filed the subject motion to stay.

         Although Petitioner seeks a stay pursuant to Rhines, because he has not moved to add new claims allegedly arising out of the passage of SB 1013 to the Amended Petition, the petition at issue is not a mixed one containing exhausted and unexhausted claims.[2] In his Reply, Petitioner indicates as much when he notes that “[i]t is unnecessary for a petitioner to first amend his petition in order to present a mixed filing prior to seeking a stay to exhaust newly developed claims.” Accordingly, should the Court exercise its discretion to grant a stay in this matter, it must do so pursuant to the procedure described in Kelly v. Small, 315 F.3d 1063 (2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). “The two approaches [set out in Rhines and Kelly] are distinct: Rhines applies to mixed petitions, whereas the three-step [Kelly] procedure applies to stays of fully exhausted petitions . . . .” Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (emphasis in original).

         The Kelly approach proceeds as follows: (1) a petitioner amends his petition to delete any unexhausted claims; (2) the Court stays and holds in abeyance the amended, fully-exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust his deleted claims; and (3) the petitioner later amends his petition and reattaches the newly-exhausted claims in the original petition. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71) (noting that the Kelly procedure remains post-Rhines); see also Mitchell v. Valenzuela, 791 F.3d 1166, 1171 n.4 (9th Cir. 2015) (Kelly procedure remains in place post-Rhines). In contrast to a Rhines stay, the Kelly procedure does not require a petitioner to demonstrate good cause for failing to exhaust claims in state court. Id.[3]

         Petitioner should be aware, however, that under the Kelly procedure, he may be precluded from adding any newly-exhausted claim if the claim is either untimely or not sufficiently related to his current claims. See 28 U.S.C. § 2244(d); King, 564 F.3d at 1140-41. Although a federal habeas petitioner may seek to amend a timely-filed petition with new claims after the expiration of the statute of limitations provided in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), any such claims must otherwise be timely, as well as “relate back” to timely claims in the petition. Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.”).

         The Court recognizes that Petitioner is not beginning with a mixed petition, because currently there are no unexhausted claims to dismiss. As such, he is in the same procedural position as a petitioner who had already undertaken the first step of the Kelly procedure. Thus, the instant motion is now amenable to a stay-and-abeyance procedure pursuant to Kelly to allow Petitioner to attempt to exhaust his additional claims in the state courts and then seek leave to amend his federal petition upon his return to this Court.

         A Kelly stay is appropriate here. To the extent that at least one of his proposed claims arises out of the passage of SB 1013, the Governor signed it into law mere weeks ago, and its new provisions went into effect on September 29, 2019. Accordingly, as Respondent concedes, Petitioner could not have raised such a claim any earlier in state court.

         In addition, Petitioner indicates that his constitutional claims will be largely premised on the Eighth Amendment. Specifically, he contends:

While the law may only apply prospective[ly], the legal changes represent not only an indicator of the evolving standards of decency that govern a maturing society, but an arguably significant admission of the constitutional infirmities of Oregon's capital statutory scheme vis-à-vis the use of the “future dangerousness” question.

ECF 155 at 8. Petitioner further cites State v. Santiago, 318 Conn. 1 (2015), in which the Connecticut Supreme Court considered a similar issue after that state passed non-retroactive legislation abolishing the death penalty. Ultimately, Connecticut's high court determined that under the state constitution, its death penalty no longer comported with contemporary standards of decency and no longer served any penological purpose. Id. at 86-87. The Connecticut Supreme Court concluded that the execution of offenders who committed their crimes before the legislation's effective date would violate the state constitution's prohibition against cruel and unusual punishment. Id. at 86. In addition, Petitioner suggests this outcome is consistent with his contention that “[t]here is no evidence of any state ever having executed a prisoner while having in place a death-penalty repeal, judicial repeal, or partial repeal (in which execution is barred for certain crimes and not others).” ECF 155 at 9.

         Respondent contends that Petitioner's proposed claim alleging that the future dangerousness question violates the United States Constitution because it is rationally and scientifically infirm and fails to meet the “heightened reliability” requirement of the Eighth Amendment and his proposed claim that he is entitled to relief under Roper v. Simmons, 543 U.S. 551 (2005), due to his young age (23) at the time of the murder, do not depend on the passage of SB 1013 and do not fall within either of Oregon's escape clauses for filing late or successive post-conviction petitions. In addition, Respondent argues that there is no connection between the now-removed future dangerousness question and evolving ...


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