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Morey v. Titus

United States District Court, D. Minnesota

June 10, 2019

Scott Marlin Morey, Petitioner,
v.
Jeff Titus, Warden, MCF-Rush City, Respondent.

          REPORT AND RECOMMENDATION

          Hildy Bowbeer United States Magistrate Judge

         This matter is before the Court on Plaintiff Scott Marlin Morey's Motion for a Stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) [Doc. No. 2]. For the reasons set forth below, the Court recommends that the motion be denied.

         I. Procedural History

         A. Morey's Conviction and Direct Appeal

         In 2016, Morey was convicted of multiple counts of criminal sexual conduct and sentenced to consecutive sentences totaling 406 months. State v. Morey, No. A16-1364, 2017 WL 3222747, at *1 (Minn.Ct.App. July 31, 2017). He appealed to the Minnesota Court of Appeals on the following grounds: (1) improperly admitted evidence of wrongful conduct, (2) prosecutorial misconduct, (3) insufficient evidence, (4) failure to treat multiple convictions as a single behavioral incident or lesser included offenses, (5) improperly admitted Spreigl evidence, (6) refusal to admit background information about the minor victims and the “confession” of a minor victim who died by suicide before trial, and (7) ineffective assistance of trial counsel. Id. at *1, 6. The Minnesota Court of Appeals affirmed in all respects but remanded the case to the trial court to correct the warrant of commitment, which incorrectly reflected the actual sentence imposed by three years. Id. at *1, 6.

         Morey filed a petition for review in the Minnesota Supreme Court. Pet. Review, State v. Morey, A16-1364 (Minn. Aug. 30, 2017). The Minnesota Supreme Court denied review on October 17, 2017, and entered judgment on October 31, 2017. State v. Morey, A16-1364, order (Minn. Oct. 17, 2017), J. (Minn. Oct. 31, 2017). Morey did not petition the United States Supreme Court for a writ of certiorari.

         B. Morey's First Habeas Petition and Motion for an Extension

         On August 9, 2018, Morey filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., Morey v. Titus, No. 18-cv-2331 (NEB/LIB) (D. Minn. Aug. 9, 2018) (“First Petition”). The grounds for relief were: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, (3) newly discovered evidence, (4) ineffective assistance of appellate counsel, and (5) cumulative effect of errors. First Pet. at 6-7, 19. A month later, on September 7, 2018, Morey filed a motion seeking an “extension of time.” Mot. Extension, Morey v. Titus, No. 18-cv-2331 (NEB/LIB) (D. Minn. Sep. 7, 2018) (“Extension Motion”). Reasoning that Minnesota law provides for two years to file a petition for postconviction relief, [1] but that federal law establishes a one-year statute of limitations to file a federal habeas petition, [2] Morey said he needed “more time to develop the record in order to proceed with” the First Petition. Id.

         On September 19, 2018, United States Magistrate Judge Leo I. Brisbois issued a report and recommendation, recommending that the Extension Motion be denied and the First Petition be dismissed without prejudice. Morey v. Titus, No. 18-cv-2331 (NEB/LIB), R. & R. (D. Minn. Sept. 19, 2018). Magistrate Judge Brisbois began by noting that the First Petition contained both exhausted and unexhausted claims, which Morey acknowledged. Id. at 1. Faced with such a “mixed” petition, Magistrate Judge Brisbois construed the Extension Motion as a request for a stay under Rhines.[3]Magistrate Judge Brisbois determined that Morey's conviction had become “final” for the purpose of federal habeas review in January 2018, and thus several months remained on his one-year clock in which to file a § 2254 petition.[4] Id. at 2-3. Because “[n]othing [was] stopping Morey from filing a state post-conviction petition today”-and the tolling provision of § 2244(d)(2) would preserve Morey's limitations-period time during those proceedings[5]- Magistrate Judge Brisbois determined that Morey had not shown good cause to stay the case and hold the petition in abeyance while Morey returned to state court to exhaust his unexhausted claims. Id. at 3.

         Morey filed objections to the report and recommendation, which were overruled by United States District Judge Nancy Brasel. Morey v. Titus, No. 18-cv-2331 (NEB/LIB), slip op. at 1 (D. Minn. Oct. 26, 2018). Accordingly, Judge Brasel dismissed the First Petition without prejudice and denied the Extension Motion. Id. at 2.

         C. Morey's Second Habeas Petition and Motion to Stay

         Several months passed before Morey filed a second federal habeas petition on February 4, 2019, thereby commencing the instant action. (Pet. [Doc. No. 1] (“Second Petition”).) The Second Petition is nearly identical to the First Petition; the only difference is that the Second Petition briefly mentions the resolution of the First Petition.

         With respect to the question of exhaustion, it appears that two of Morey's current habeas claims may have been presented to the Minnesota Court of Appeals, either by his appellate counsel or in Morey's pro se brief: (1) ineffective assistance of trial counsel and (2) prosecutorial misconduct. The Court is not able to ascertain whether the particular factual bases for these claims are the same, however, because neither party has provided the appellate briefs to the Court. The Court also cannot ascertain from the present record whether Morey or his appellate attorney presented the federal nature of the claims to each level of the Minnesota state courts. Assuming those two claims were exhausted, that leaves the ineffective assistance of appellate counsel claim, newly discovered evidence claim, and cumulative errors claim as the unexhausted claims.

         Morey also filed a motion to stay the case pursuant to Rhines. (Mot. Stay [Doc. No. 2]) (“Motion to Stay”).) Respondent opposes Morey's motion for a stay on the grounds that Morey has not demonstrated good cause for failing to exhaust all of his claims in state court, has not ...


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