Phelps v. Peery

Background

Phelps, a California prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254, the federal statute allowing a state prisoner to seek federal review of a conviction or sentence. The petition originally raised five claims. The court had previously dismissed claim three for failure to state a claim that could be addressed through this type of petition and found the remaining claims legally cognizable.

The four remaining claims concerned alleged problems with surveillance and cell-phone video, ineffective assistance of trial counsel for not calling an eyewitness-identification expert, and two allegations of prosecutorial misconduct. Phelps said claims four and five had not been exhausted, meaning he had not properly presented them to the state courts for review, and asked the federal court to stay the case while he did so.

Phelps had raised claims one and two in the opening brief of his state appeal. He added claims four and five only in his reply brief. The California Court of Appeal denied claims one and two and did not consider claims four and five on their merits because Phelps had not shown good cause for raising them for the first time in the reply brief. The California Supreme Court later denied review without explanation.

Legal standard

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 the claims earlier; (2) that the unexhausted claims are not plainly meritless; and (3) that the petitioner did not intentionally use delaying tactics.

Court’s analysis

The court found good cause. It concluded that appellate counsel had no objectively reasonable justification for presenting claims four and five for the first time in a reply brief, a procedure that prevented the state court from reviewing those claims on their merits. The court held that unreasonable performance by appellate counsel can constitute good cause for a stay under Rhines and did not distinguish between ineffective assistance by appellate counsel and by state post-conviction counsel for this purpose.

The court also found that claim five was not plainly meritless. That claim alleged that the prosecutor improperly elicited testimony suggesting that a prosecution witness, Detective Tressler, believed another witness was unreliable. The court said Phelps could reasonably argue that the questioning improperly placed the government’s credibility behind that conclusion and potentially prejudiced him because the witness had testified that he did not recognize Phelps as the shooter. The court did not decide whether the claim ultimately would succeed.

Finally, the court found no intentionally dilatory tactics. The respondent conceded that there was no indication Phelps intended to delay. The court also noted that the inmate who was helping Phelps began doing so after the federal case and initial stay request were filed.

Ruling and instructions

The court granted the motions for a stay, docket numbers 14 and 15. The case was stayed so Phelps could present the unexhausted claims to the California Supreme Court. If he did not obtain relief in state court, he could return to the federal court and ask to lift the stay.

The court required Phelps to pursue the unexhausted claims promptly and within the time allowed by state law. Within 30 days after the state courts finished reviewing the claims or refused to review them, Phelps had to file a First Amended Petition. That amended petition would replace the original petition, and only claims included in it would remain under consideration. If either condition was not satisfied, the court could vacate the stay and proceed only on the two exhausted ineffective-assistance claims.

The clerk was directed to administratively close the case. The court explained that this closure was only statistical and had no legal effect; the case could be reopened and the stay lifted after Phelps provided the required notice.