Tully v. Davis

Background

Richard Tully, a condemned prisoner at California’s San Quentin State Prison, filed a federal habeas petition containing 114 claims. A habeas petition is a request for a federal court to review whether a person’s custody violates federal law. Tully and Ron Davis agreed that Claims 103, 104, 106, 109, 110, and 114 were unexhausted, meaning Tully had not yet presented those claims to the highest available state court.

Tully filed a state petition addressing the six unexhausted claims and asked the federal court to stay—pause—and hold his federal case in abeyance while the state proceedings continued. Davis opposed the request, arguing that Tully had not shown that his unexhausted claims were potentially meritorious.

Legal standard

Federal law generally requires a habeas petitioner to exhaust available state remedies for each claim before the federal court may grant relief. Under the Supreme Court’s decision in Rhines v. Weber, a federal court may stay a petition containing both exhausted and unexhausted claims when the petitioner shows: (1) good cause for failing to exhaust; (2) that the unexhausted claims are potentially meritorious; and (3) that the petitioner did not intentionally engage in delaying tactics.

For the potential-merit requirement, the court explained that a stay is appropriate if at least one unexhausted claim is not “plainly meritless.” The court said this is a lenient standard and requires only that the claim be colorable—that is, supported by specific allegations that could entitle the petitioner to relief if proven.

Court’s analysis

The court found that Tully had good cause for not previously exhausting the claims. Tully relied on developments that occurred after his earlier state proceedings, including new evidence and legal developments. These included Governor Gavin Newsom’s March 13, 2019, executive order concerning executions, a California Supreme Court administrative order and related letter concerning clemency procedures, the Supreme Court’s decision in Hurst v. Florida, and the completion of state post-conviction review relevant to one claim. Davis did not argue that Tully lacked good cause.

The court concluded that at least Claim 103 was not plainly meritless. That claim argued that California’s capital-sentencing system unconstitutionally failed to require a jury to determine beyond a reasonable doubt every fact necessary for a death sentence, including the existence and weighing of aggravating and mitigating circumstances. The court discussed Hurst, which held that Florida’s capital-sentencing system violated the Sixth Amendment because the judge, rather than the jury, made essential findings needed to impose death.

The court acknowledged that the California Supreme Court had upheld California’s capital-sentencing system against similar arguments and had said that Hurst, Ring, and Apprendi did not change its conclusions. But the court found that the California Supreme Court’s explanation did not address all of Tully’s arguments, including whether aggravating circumstances and the weighing of aggravating and mitigating circumstances must be proved beyond a reasonable doubt. The court also noted that neither the Supreme Court nor the Ninth Circuit had foreclosed this particular challenge to California’s system. It therefore found Claim 103 “colorable” for purposes of the stay request.

The court also found that Tully’s argument about whether the relevant Hurst rule applied retroactively was not frivolous. The court did not decide whether Claim 103 ultimately succeeds or whether Hurst applies retroactively to Tully’s case.

Finally, Davis did not argue that Tully had used intentionally delaying tactics. The court found no basis to conclude that he had done so, noting that Tully filed his state exhaustion petition before filing his federal petition and before the deadline set by the court’s local rules.

Disposition

The court held that Tully satisfied all three Rhines requirements. It GRANTED Tully’s motion for stay and abeyance, Docket No. 27, and STAYED the matter.

The court ordered Tully to serve and file a status report 30 days after the order and every 90 days thereafter until the state proceedings were completed. Within 30 days after the state proceedings ended, he had to notify the federal court that they were complete. The order disposed of Docket No. 27.