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David Sell v. James T. Conway

March 30, 2012

DAVID SELL, PETITIONER,
v.
JAMES T. CONWAY, RESPONDENT.



The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

DECISION & ORDER

Petitioner David Sell ("Sell") in the above-captioned matter has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 alleging, inter alia, that the trial court improperly denied his peremptory challenge to a juror under federal and state law, the prosecutor failed to disclose Brady material and he was denied effective assistance of counsel. (Docket # 1). Currently pending before the Court are Sell's motions to stay the proceedings so that he may return to state court to exhaust his remedies, to supplement the record and to conduct discovery. (Docket ## 15, 17, 26).

I. Sell's Motion for a Stay

Sell's "Motion to Supplement or for a Stay" (Docket # 15) and "Motion to Stay" (Docket # 17) seek essentially the same relief. In the Motion to Stay, Sell lists five issues that he wishes to return to state court to exhaust. (Docket # 17). Specifically, his motion identifies them as follows:

(1) Defects as to my Indictment. Specifically, there exists no signed true [b]ill, as well as two different indictments for the same charges[] that contain two different forms of signature.

(2) Newly discovered evidence pertaining to witness Virgil Williams.

(3) I would like to properly preserve point four of my petition by way of Error Coram Nobis.

(4) The mishandling of [j]ury notes.

(5) Counsel's failure to properly challenge Juror No. 11. (Id.). Sell's motion is unaccompanied by either a memorandum of law or affidavit explaining or justifying his request. In his reply, Sell has attached two pages from the minutes of witness Virgil Williams's sentencing, during which the judge stated that he had been advised by the district attorney's office that Williams had cooperated in the prosecution of "another who had apparently shot at him." (Docket # 21). Sell identifies himself as the victim to whom the judge was referring. (Id. at ¶ 10). According to Sell, this "newly-discovered evidence, coupled with previous evidence of [two other] witness[es] testifying falsely in regards to their plea agreements, has merit and is relevant to the bearing it had on the verdict." (Id. at ¶ 11).

In order to invoke the stay-and-abeyance procedure, a petitioner must fulfill the criteria set forth in Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court stated, [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. 544 U.S. at 277.

A. Newly-Discovered Evidence Concerning Virgil Williams

I turn first to the second ground that Sell seeks a stay to exhaust -- the alleged newly-discovered evidence that Virgil Williams was cooperating with the district attorney's office when he testified in Sell's trial. Sell has provided far too little information for this Court to determine whether a stay should be granted, however. For example, the Court cannot discern the date on which Williams was sentenced (specifically, whether it was before or after Sell's trial); the date when Sell obtained the minutes; the reasons, if any, that Sell could not obtain the evidence earlier; and, the relevance of the alleged newly-discovered evidence to the merits of Sell's pending habeas petition. Further, Sell has failed to identify the state relief that he intends to seek on the basis of the sentencing minutes and the new claim that he intends to include in his habeas petition. Finally, Sell has failed to address the Rhines factors in seeking a stay on this ground.

Without the benefit of this information, this Court cannot determine whether Sell's claim is "plainly meritless" or whether he can demonstrate good cause for failing to exhaust this claim earlier. Accordingly, Sell's motion for a stay to pursue state relief related to Virgil Williams's alleged cooperation with the district attorney's office is DENIED without prejudice to renewal. Should Sell wish to pursue a stay for the purpose of exhausting this issue, he must re-file his motion to stay within thirty (30) days of receipt of this Order and must include with his motion an affidavit addressing the questions identified above, as well as the factors in Rhines v. Weber. Specifically, Sell must explain (1) when he obtained the sentencing minutes, (2) why he did not obtain them sooner, (3) when Williams was sentenced, (4) how Williams's sentencing minutes relate to the merits of his petition, (5) what relief he intends to seek in state court, and (6) the Rhines factors.

In addition to re-filing his motion for a stay, Sell must also file a motion to amend the petition to include the new unexhausted claim(s) he seeks to add to the petition. The motion to amend the petition must attach a proposed amended petition that raises both the claims now raised in the petition and the ...


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