Tully v. Davis

          ORDER GRANTING PETITIONER'S REQUEST FOR STAY AND ABEYANCE DOCKET NO. 27

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE

         Petitioner Richard Tully, a condemned prisoner at California's San Quentin State Prison, has filed a federal habeas petition containing 114 claims. See Docket No. 26. Petitioner and Respondent agree that Claims 103, 104, 106, 109, 110, and 114 are unexhausted. See Docket No. 36 at 2. Petitioner has filed a state court petition for writ of habeas corpus in to order exhaust these claims. See Docket No. 25. In addition, pursuant to Rhines v. Weber, 544 U.S. 269, 278 (2005), Petitioner has filed the instant Motion to Hold Federal Habeas Proceedings in Abeyance While the State Exhaustion Petition is Pending (Docket No. 27). Respondent opposes Petitioner's request for stay and abeyance, arguing that Petitioner has not shown that his unexhausted claims are potentially meritorious.

         For the following reasons, Petitioner's motion for stay and abeyance is GRANTED.

         I. BACKGROUND

         In 1992, a jury convicted Petitioner of first-degree murder and assault with intent to commit rape and found true the special circumstances that Petitioner committed the murder while engaged in the commission of a burglary and that he used a dangerous weapon, a knife, in the commission of both offenses. Petitioner was sentenced to death. The California Supreme Court affirmed his conviction and sentence. People v. Tully, 54 Cal.4th 952 (2012). The United States Supreme Court denied certiorari review. Tully v. California, 568 U.S. 1175 (2013).

         On March 16, 2011, while his direct appeal was pending in the California Supreme Court, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The California Supreme Court denied the petition on June 20, 2018. In re Tully, No. S191449.

         On August 7, 2018, Petitioner initiated the instant federal habeas action by asking this Court to appoint counsel and stay his execution. See Docket No. 1. On April 17, 2019, the Court entered an Order (Docket No. 20) granting Petitioner's request for equitable tolling of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1), thereby making Petitioner's federal habeas petition due September 13, 2019. On August 30, 2019, Petitioner filed his second petition for writ of habeas corpus in the state court, which presents the unexhausted claims alleged in Petitioner's federal petition. See Docket No. 25. Simultaneous with his filing of his federal petition, on September 8, 2019, Petitioner filed the instant motion for a stay of this case. Respondent filed an opposition (Docket No. 34) on September 23, 2019, and Petitioner has filed a reply (Docket No. 35).

         Petitioner seeks stay and abeyance of this case so that he may exhaust the following claims in his federal petition: a) Claim 103 - Petitioner's claim that California's capital sentencing scheme unconstitutionally deprived him of a beyond a reasonable doubt jury determination of every fact necessary to sentence him to death; b) Claim 104 - Petitioner's claim that California's capital punishment system violates the Eighth Amendment due to its “variability” in selecting condemned inmates to be executed and the excess delay that attends litigation of capital sentences; c) Claim 106 - Petitioner's claim that California's capital post-conviction review process is unconstitutional; d) Claim 109 - Petitioner's claim that, as made clear by recent events, society's “evolving standards of decency” have rendered California's death penalty scheme unconstitutional; e) Claim 110 - Petitioner's claim that California's clemency procedure is unconstitutional; and f) Claim 114 - Petitioner's claim that cumulative error has resulted in a denial of his due process rights and warrants issuance of the writ of habeas corpus even if no individual error justifies relief on its own.

         II. LEGAL STANDARD

         A federal court may not grant habeas relief until a petitioner has exhausted available state remedies with respect to each claim. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 272 (1971). A federal constitutional claim is exhausted when it has been “fairly presented” to the highest state court and that court has had a meaningful opportunity to apply controlling legal principles to the facts underlying the claim. Picard, 404 U.S. at 276-77.

         The Supreme Court follows a rule of “total exhaustion, ” requiring that all claims in a habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition containing both exhausted and unexhausted claims so that the petitioner may exhaust his claims in state court without running afoul of the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Rhines, 544 U.S. at 273-75. A district court must stay a mixed petition if: (1) the petitioner has good cause for his failure to exhaust his claims, (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278.

         III. DISCUSSION

         Petitioner argues that he has demonstrated “good cause” for his failure to exhaust his claims in the state court, that his claims are potentially meritorious, and that he has not engaged in dilatory tactics. Docket No. 27 at 5-9. As discussed below, the Court agrees and therefore concludes that ...