Tull v. Shinn

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Conrad Anthony Tull, No. CV-19-05909-PHX-JJT 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 In this habeas corpus action filed by Conrad Tull, Petitioner’s petition for writ of 16 habeas corpus was denied as untimely on February 1, 2021 (Doc. 30). As explained in the 17 Court’s August 20, 2021 Order, Petitioner filed a notice of appeal, and the Court of Appeals 18 vacated the judgment and remanded the matter for this Court to consider Petitioner’s 19 motion to stay, which was denied by the Magistrate Judge. That Order further explained 20 that it would treat Judge Willett’s Order on the motion to stay as a report and 21 recommendation and permitted Petitioner to file objections, which this Court would 22 consider de novo. Petitioner filed his objections on September 13, 2020, and the Attorney 23 General responded (Docs. 44-45). 24 Petitioner then filed a Motion to Intervene (Doc. 46), wherein he identifies a recent 25 Ninth Circuit decision, Bolin v. Baker, 994 F.3d 1154 (9th Cir. 2021), explaining the 26 standard for a motion to stay habeas corpus proceedings. The motion to intervene will be 27 granted to the extent that the Court considers the motion as an argument in support of his 28 motion to stay. 1 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court has held that “a federal 2 district court has discretion to stay [a] mixed petition to allow the petitioner to present his 3 unexhausted claims to the state court in the first instance, and then to return to federal court 4 for review of his perfected petition.” Rhines, 544 U.S. at 271–72. This discretion is to be 5 exercised under “limited circumstances,” id. at 277 , because “routinely granting stays 6 would undermine the AEDPA’s goals of encouraging finality and streamlining federal 7 habeas proceedings.” Blake v. Baker , 745 F.3d 977 , 981–82 (9th Cir. 2014). 8 As Petitioner explains in his motion to intervene, the stay-and-abeyance procedure 9 is appropriate only where the habeas petitioner has shown: (1) “good cause” for the failure 10 to exhaust, (2) the unexhausted claim is “potentially meritorious,” and (3) the petitioner 11 did not “engage[ ] in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277–78. 12 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported 13 by sufficient evidence, to justify” the failure to exhaust the claim in state court. Blake, 745 14 F.3d at 982. However, “even if a petitioner had good cause for that failure, the district court 15 would abuse its discretion if it were to grant him a stay when his unexhausted claims are 16 plainly meritless.” Rhines, 544 U.S. at 277–78. 17 In his motion to stay, Petitioner stated that in February 2020, he filed a pro se 18 petition for post-conviction relief presenting ineffective assistance of trial, appellate, and 19 post-conviction relief (“PCR”) counsel. Specifically, Petitioner alleged that his post20 conviction relief counsel assured petitioner that she would file a PCR petition but failed to 21 timely file it, which resulted in its dismissal. Further, Petitioner alleges that appellate 22 counsel failed to raise a meritorious appellate issue in favor of raising meritless issues. 23 In neither his motion to stay nor his objections does Petitioner articulate the bases 24 for his claims that he sought to pursue in state court while staying his federal petition. As 25 a result, without further explanation there is no basis to conclude that a stay is appropriate 26 to pursue a “meritorious claim.” As a result, the Court agrees with the Magistrate Judge’s 27 conclusion that a stay was not appropriate. 28 . . . . 1 IT IS THEREFORE ORDERED that Petitioner’s Motion to Intervene (Doc. 46) is granted to the extent set forth herein. 3 IT IS FURTHER ORDERED adopting the Report and Recommendation (Doc. 17), overruling Petitioner’s objections (Doc. 44), and denying Petitioner’s Motion 5 || to Stay these proceedings (Doc. 11). Petitioner’s petition for writ of habeas corpus remains 6 || denied as untimely and this matter shall remain closed. 7 Dated this 23rd day of September, 2022. CN iy. 9 wefflee— Unifgd StateDistrict Judge [28] -3-