United States District Court, N.D. California
ORDER GRANTING PETITIONER'S REQUEST FOR STAY AND
ABEYANCE DOCKET NO. 27
M. CHEN, UNITED STATES DISTRICT JUDGE
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.
following reasons, Petitioner's motion for stay and
abeyance is GRANTED.
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).
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.
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).
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.
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
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.
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