Opinion
No. 2:93-cv-0434-JCM-LRL.
August 25, 2006
ORDER
In this capital habeas corpus action, the petitioner, Robert Jeffrey Farmer, seeks a stay so that he may complete certain state-court litigation before proceeding further with this action. The Court will grant petitioner's motion, and stay this action.
Petitioner filed a second amended habeas corpus petition on October 1, 2004 (docket #136). Respondents moved to dismiss that petition, arguing that it contained claims not exhausted in state court (docket #155). The Court resolved that motion on March 22, 2006, finding one subpart of Ground 7 of the second amended petition to be unexhausted (docket #169). The March 22 order required petitioner to make an election regarding the unexhausted portion of Ground 7: petitioner was to either file a notice of abandonment of that claim, or file a motion for a stay so that he may return to state court to exhaust it.
On April 21, 2006, petitioner filed a Notice of Abandonment of Unexhausted Claim (docket #176), stating his election to abandon the unexhausted portion of Ground 7. Accordingly, on May 1, 2006, the Court dismissed the unexhausted subpart of Ground 7 (docket #178).
On April 21, 2006, petitioner also filed a Motion for Stay and Abeyance (docket #177). That motion was unrelated to the issues regarding the unexhausted portion of Ground 7. In the Motion for Stay and Abeyance, petitioner seeks a stay so that, before this case proceeds further, he may complete certain state court litigation that he initiated in December 2005.
The claim that petitioner is litigating in state court is based on McConnell v. State, ___ Nev. ___, 102 P.3d 606 (2004). In McConnell, on December 29, 2004, the Nevada Supreme Court ruled that it is "impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated." McConnell, 102 P.3d at 624. Petitioner makes a similar claim in Ground 3 of his second amended petition in this case. See Second Amended Petition (docket #139), pp. 52-53. The Court has found that Ground 3 was exhausted in state court, in petitioner's third state habeas petition. See Order entered March 22, 2006 (docket #169), pp. 23-24. Nonetheless, petitioner seeks a stay so that he may litigate his McConnell claim again in state court. Petitioner asserts that he has reason to do so, and that he will be able to overcome the procedural hurdles to doing so, because of the change in Nevada law represented by the McConnell decision.
On May 26, 2006, respondents filed an opposition to petitioner's motion for a stay (docket #181). Petitioner replied on June 19, 2006 (docket #184).
The Court will grant petitioner's motion, and stay this case pending the completion of petitioner's state-court litigation of his McConnell claim.
Petitioner's death sentence appears to be the kind that the Nevada Supreme Court, in McConnell, ruled impermissible under both the state and federal constitutions. Petitioner was charged with first degree murder, and ultimately pled guilty to that charge. Respondents have not pointed to any indication in the record that petitioner admitted to premeditation; on the other hand, there is evidence that the guilty plea was based on a felony murder theory, stemming from petitioner's admission that the killing occurred during a robbery and burglary. See Record on Appeal, Exhibits O (Transcript of Change of Plea), P (State's Penalty Hearing Brief), and R (Judgment), ¶ 3. Thereafter, the robbery and burglary that were used as bases for the felony murder theory were also asserted by the prosecution, and relied upon by the 3-judge sentencing panel, as the sole aggravating factors justifying imposition of the death penalty. See Record on Appeal, Exhibit R (Judgment), ¶ 3. Respondents have not suggested that there is any factual aspect of petitioner's case placing it outside the reach of the McConnell decision.
The exhibits from the record on appeal in state court, referred to in this order, were originally filed by respondents in support of their Answer in Case Number CV-S-89-0271-LDG in this Court.
The parties point out that there is an issue with respect to whether McConnell applies retroactively to petitioner's final judgment of conviction, and inform the Court that the issue of the retroactivity of McConnell is pending in the Nevada Supreme Court. The issue of the retroactivity of McConnell is plainly a matter of Nevada law, which, as a matter of comity, should be decided in the first instance by the Nevada Supreme Court. It appears likely that court will decide the issue before the resolution of petitioner's state habeas proceeding.
The Court is informed that oral argument was held in the Nevada Supreme Court on the issue of the retroactivity of McConnell on June 13, 2006, in Rippo v. State, Nevada Supreme Court Case Number 44094, and Bejarano v. State, Nevada Supreme Court Case Number 44297.
In addition, there will probably be other procedural hurdles complicating petitioner's state-court litigation, as it has been 22 years since petitioner's conviction, and petitioner has already unsuccessfully litigated the claim regarding the aggravating factors. See, e.g., NRS 34.726, 34.810(2). However, petitioner argues, based on Leslie v. Warden, 118 Nev. 773, 59 P.3d 440 (2002), that he can overcome those procedural hurdles. In Leslie, there was an apparent procedural default with respect to the petitioner's claim that a particular aggravating circumstance was invalid. See id. at 780. Nonetheless, the court reached the merits of the claim, explaining:
While this claim could have been raised before and is therefore subject to the waiver provisions of NRS 34.810(1)(b), we conclude that our refusal to consider the issue would result in a fundamental miscarriage of justice. We have stated that a fundamental miscarriage of justice can be demonstrated by a showing that the defendant "is actually innocent of the crime or is ineligible for the death penalty."Id. at 780, quoting Pellegrini v. State, 117 Nev. 860, 886-87, 34 P.3d 519, 537 (2001) (procedural bars can be overcome by demonstrating that the court's failure to review an issue would result in a fundamental miscarriage of justice). In view of Leslie, it appears that there is a substantial possibility that the Nevada courts will entertain petitioner's McConnell claim on its merits.
If the Nevada courts look past petitioner's possible procedural default, and reach the merits of his claim that his death penalty was based on invalid aggravating circumstances, and if petitioner obtains relief on that claim, a significant portion of this action — all petitioner's claims concerning his death penalty — will be mooted. Under these circumstances, the Court finds that the interests of justice, comity, and judicial economy will be best served by granting petitioner the stay he seeks. The Court determines that petitioner should have an opportunity to present his claim based on McConnell to the Nevada courts, and the Nevada courts should have the opportunity to resolve that claim before this case proceeds further.
The Court agrees with respondents that Rhines v. Weber, 544 U.S. 269 (2005), is not directly applicable in this situation. Rhines involved the question of a stay to allow a habeas petitioner to exhaust unexhausted claims, while in this case the petitioner seeks a stay to return to state court and present to the state courts for a second time a claim that has already been exhausted.
Nevertheless, neither Rhines nor any other authority cited by respondents prevents the sort of stay requested here. A federal court has inherent authority to issue a stay, where a stay is a proper exercise of discretion. See Rhines, 544 U.S. at 276, citing Landis v. North American Co., 299 U.S. 248, 254 (1936), and Clinton v. Jones, 520 U.S. 681, 706 (1997). In view of the Nevada Supreme Court's McConnell decision and the pending issue regarding the retroactivity of that decision, and also in view of Leslie, the claim that petitioner seeks to litigate in state court is not plainly meritless and is not plainly barred procedurally in state court. It does not appear that petitioner has engaged in intentionally dilatory litigation tactics with respect to his McConnell claim. The interests of justice, comity, and judicial economy weigh in favor of a stay.
IT IS THEREFORE ORDERED that petitioner's Motion for Stay and Abeyance (docket #177) is GRANTED. IT IS FURTHER ORDERED that this action is STAYED to allow petitioner an opportunity to litigate in state court his claim based on McConnell v. State, ___ Nev. ___, 102 P.3d 606 (2004), before this action proceeds further.
IT IS FURTHER ORDERED that the Clerk shall administratively close this case.
IT IS FURTHER ORDERED that, following the conclusion of petitioner's state court proceedings, petitioner shall, within thirty (30) days, make a motion to lift the stay in this action.
IT IS FURTHER ORDERED that, on or before December 15, 2006, petitioner shall file and serve a status report, describing the status of his state-court proceedings. Petitioner shall thereafter file and serve a status report every 6 months (on or before the 15th day of June 2007, December 2007, June 2008, etc.). Respondents may file and serve a response to any such status report within 20 days after its service. Petitioner may reply within 15 days of service of such a response.
IT IS FURTHER ORDERED that this action shall be subject to dismissal upon a motion by respondents if petitioner does not comply with the time limits in this Order, or if he otherwise fails to proceed with due diligence.