Cross v. Holbrook, No. 2:2014cv01092 - Document 38 (W.D. Wash. 2016)
Court Description: ORDER denying petitioner's 30 Motion for Stay of Proceedings by Judge James L. Robart. (AD)
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Cross v. Holbrook Doc. 38 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 DAYVA CROSS, Petitioner, 11 DONALD HOLBROOK, Respondent. 14 15 16 ORDER DENYING MOTION FOR STAY OF PROCEEDINGS v. 12 13 CASE NO. C14-1092JLR I. INTRODUCTION Before the court is Petitioner Dayva Cross’s motion to stay his habeas corpus 17 petition. (Mot. (Dkt. # 30).) Respondent Donald Holbrook filed a response arguing that 18 Mr. Cross has failed to demonstrate good cause for a stay in these proceedings “at least to 19 his challenge to his convictions.” (Resp. (Dkt. # 31) at 2.) The court has reviewed Mr. 20 Cross’s motion, all submissions filed in support of and opposition to the motion, the 21 balance of the record, and the applicable law. Being fully advised, the court DENIES 22 Mr. Cross’s motion for a stay. ORDER- 1 Dockets.Justia.com 1 2 II. BACKGROUND Mr. Cross was convicted of aggravated first degree murder and sentenced to death. 3 The Washington Supreme Court affirmed the convictions and sentence on direct appeal, 4 and denied Mr. Cross’s personal restraint petition. See State v. Cross, 132 P.3d 80 5 (Wash. 2006); In re Cross, 309 P.3d 1186 (Wash. 2013); In re Cross, 327 P.3d 660 6 (Wash. 2014). The Washington Supreme Court issued a certificate of finality on October 7 7, 2014. (See Cert. (Dkt. # 7-1).) Mr. Cross initiated this action in federal court on July 8 15, 2014. (See Ex Parte Mot. (Dkt. # 1).) The court granted a stay of execution on 9 October 14, 2014. (10/14/14 Order (Dkt. # 10).) Mr. Cross filed his first amended 10 petition for a writ of habeas corpus on May 29, 2015 (Am. Pet. (Dkt. # 15)), and his 11 second amended petition on July 12, 2015 (2d Am. Pet. (Dkt. # 18)). Respondent filed 12 his answer on October 29, 2015. (Ans. (Dkt. # 23).) Mr. Cross’s reply is due on June 17, 13 2016. (2/24/16 Order (Dkt. # 35).) 14 Mr. Cross now seeks to stay his federal habeas corpus proceedings on two 15 grounds. First, based on a November 12, 2015, news report, counsel for Mr. Cross 16 argues that the Washington Association of Prosecuting Attorneys has announced that 17 state prosecutors will ask lawmakers to send a death-penalty referendum to the voters of 18 Washington State in 2016. 1 (Mot. at 3.) Mr. Cross’s counsel also notes that Governor 19 Jay Inslee has placed a moratorium on all executions in the state of Washington while he 20 21 1 In his reply memorandum, Mr. Cross also cites an interview with King County Prosecuting Attorney Dan Satterberg in which Mr. Satterberg states his opinion that Washington 22 State will ultimately eliminate the death penalty. (See Reply (Dkt. # 32) at 3, Ex. A.) ORDER- 2 1 is in office. (Id. at 2-3.) Mr. Cross’s counsel argues that “[i]n light of these new 2 developments, there is a significant possibility that the [s]tate of Washington will abolish 3 the death penalty in the very near future.” (Id. at 3.) Mr. Cross asks the court to stay his 4 habeas corpus proceeding “to allow the lawmakers of the [s]tate of Washington to 5 evaluate our death penalty laws.” (Id. at 5.) Second, in his reply memorandum, Mr. 6 Cross argues that the Washington Supreme Court is currently considering several capital 7 cases which “could result in the abolition of the death penalty scheme in Washington 8 under which Mr. Cross has been sentenced to death.” (Reply (Dkt. # 32) at 2 & n.1; see 9 also Mem. (Dkt. # 33).) 10 Respondent argues that the court should deny the stay “at least as to the claims 11 challenging the validity of [Mr.] Cross’s convictions.” (Resp. at 3.) Respondent argues 12 that “even if the referendum passed and the voters repealed the death penalty, the [c]ourt 13 must still resolve [Mr.] Cross’s claims challenging his convictions.” (Id.) Respondent 14 also argues that pending habeas corpus petitions harm the State’s compelling interest in 15 the enforcement of state criminal laws and the finality of state court judgments, and a stay 16 of those proceedings compounds this harm. (Id.) 17 18 III. ANALYSIS In determining whether a stay is appropriate, the court must weigh “the competing 19 interests which will be affected by the granting or refusal to grant a stay.” Lockyear v. 20 Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 21 F.2d 265, 268 (9th Cir. 1962)). In considering whether to exercise its discretion to grant 22 a stay, the court should weigh three factors: “(1) the possible damage which may result ORDER- 3 1 from the granting of a stay, (2) the hardship or inequity which a party may suffer in being 2 required to go forward, and (3) the orderly course of justice measured in terms of the 3 simplifying or complicating of issues, proof, and questions of law which could be 4 expected to result from a stay.” CMAX, 300 F.2d at 268. The “proponent of a stay bears 5 the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997) (citing 6 Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)). If there is “even a fair possibility” of 7 harm to the opposing party, the moving party “must make out a clear case of hardship or 8 inequity in being required to go forward.” Landis, 299 U.S. at 255; Lockyer, 398 F.3d at 9 1112. 10 The court has the authority to stay a federal habeas corpus petition where a stay 11 “would be a proper exercise of discretion.” Rhines v. Weber, 544 U.S. 269, 276 (2005). 12 Although the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 13 U.S.C. § 2254(b)(1)(A), does not deprive courts of the authority to stay habeas corpus 14 petitions, the AEDPA “does circumscribe their discretion.” Rhines, 544 U.S. at 276. 15 One of the purposes of the AEDPA “is to ‘reduce delays in the execution of state and 16 federal criminal sentences, particularly in capital cases.’” Id. (quoting Woodford v. 17 Garceau, 538 U.S. 202, 206 (2003)). Even where a stay is appropriate, “the district 18 court’s discretion in structuring the stay is limited by the timeliness concerns reflected in 19 AEDPA.” Id. at 277. Thus, a habeas petition should not be stayed indefinitely. Id. 20 The court finds that the relevant factors do not weigh in favor of granting 21 Petitioner’s motion for a stay. With respect to the first factor—the possible damage 22 which may result from the granting of a stay, CMAX, 300 F.2d at 268—Respondent ORDER- 4 1 asserts that a stay would compound harm to the State’s interest in the finality of its 2 judgments and the enforcement of its criminal laws. (Resp. at 3.) The court agrees. In In 3 re Blodgett, 502 U.S. 236 (1992), the Supreme Court determined that Washington State 4 suffered prejudice when a two-and-one-half-year stay of execution prevented the State 5 from exercising its sovereign power to enforce the criminal law—an interest the Supreme 6 Court found of “great weight.” Id. at 239-40. Mr. Cross argues that any such harm is 7 limited because he is seeking a stay of “perhaps no more than six months” (Mot. at 5) or 8 “through the end of the Washington legislature’s 2016 term, to determine whether the 9 legislature will take action on this issue and whether the Supreme Court may address the 10 validity of the death penalty during this time period” (Reply at 2). Although the shorter 11 stay that Mr. Cross seeks may limit the harm suffered by the State, it does not eliminate 12 that harm. 13 On the other hand, with respect to the second factor—the hardship or inequity 14 which a party may suffer in being required to go forward, CMAX, 300 F.2d at 268—Mr. 15 Cross’s counsel acknowledges that Mr. Cross “would not suffer any ‘hardship’ if he is 16 required to go forward in this litigation.” (Mot. at 4.) Indeed, as indicated above, 17 irrespective of the outcome of this proceeding, Mr. Cross’s sentence cannot be enforced 18 at the moment because Governor Inslee has placed a moratorium on all executions in the 19 state of Washington while he is in office. At most, Mr. Cross’s attorneys argue that they 20 “will be forced to expend considerable resources over the next several months,” as will 21 the court and opposing counsel. (Id.; Reply at 3 n.2.) These are the typical costs of 22 litigation, and the court does not believe they constitute the type of hardship that might ORDER- 5 1 warrant a stay in habeas corpus proceedings. See Rhines, 544 U.S. at 276-77 (concluding 2 that AEDPA circumscribes the court’s discretion to issue stays in habeas corpus 3 proceedings). 4 Finally, the court finds that the third factor—the the orderly course of justice, 5 CMAX, 300 F.2d at 268—does not weigh in favor of granting Mr. Cross’s motion. As 6 Respondent points out, Mr. Cross’s petition contains challenges to not just his sentence 7 but his conviction as well. (Resp. at 2.) In his motion, Mr. Cross asserts no basis for 8 staying the portions of his petition that relate to his conviction. (See generally Mot.) 9 Thus, the litigation will proceed forward and litigation costs will necessarily be incurred 10 even if the court were inclined (which it is not) to grant Mr. Cross’s motion for a stay 11 regarding the challenges that relate solely to his sentence. 12 In any event, the court is unwilling to stay this litigation on the thin threads that 13 (1) the Washington legislature may place a referendum on the death penalty before the 14 voters of this state that those voters may subsequently approve, or (2) the Washington 15 Supreme Court may issue a ruling at some point during the coming months on a pending 16 matter that may impact the validity of Mr. Cross’s sentence. On balance, the court finds 17 that the factors it considers in deciding whether to exercise its discretion to stay a 18 proceeding do not weigh in favor of a stay. If circumstances change and the legislature in 19 fact places a referendum concerning the death penalty before Washington’s voters, or if 20 there are developments in any of the cited cases before the Washington Supreme Court 21 that merit this court’s attention, Mr. Cross may re-file his motion. As circumstances 22 ORDER- 6 1 presently exist, however, the court believes a stay is inappropriate and therefore denies 2 Mr. Cross’s motion. 3 4 IV. CONCLUSION Based on the foregoing analysis, the court DENIES Mr. Cross’s motion for a stay 5 (Dkt. # 30). If circumstances change, as described above, Mr. Cross may re-file his 6 motion, but at this time the court finds no basis for entering a stay in these habeas corpus 7 proceedings. 8 Dated this 18th day of April, 2016. 9 11 A 12 JAMES L. ROBART United States District Judge 10 13 14 15 16 17 18 19 20 21 22 ORDER- 7
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