United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Bowbeer United States Magistrate Judge
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
Morey's Conviction and Direct Appeal
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.
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.
Morey's First Habeas Petition and Motion for an
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,  but that federal law establishes a
one-year statute of limitations to file a federal habeas
petition,  Morey said he needed “more time to
develop the record in order to proceed with” the First
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.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. 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- 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.
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.
Morey's Second Habeas Petition and Motion to
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.
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
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 ...