UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MARCO MONTEZ ) 3:14-cv-01551-MC

)

Petitioner, ) OPINION AND ORDER

)

v. )

)

JEFF PREMO, Superintendent, ) 

Oregon State Penitentiary, )

)

Respondent. )

McSHANE, District Judge.

Petitioner moves the Court pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005) and 

Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Cary, 

481 F.3d 1142 (9th Cir. 2007), to stay his pending federal death penalty habeas proceedings and 

hold them in abeyance while he returns to state court to raise and exhaust Constitutional claims 

arising out of the Oregon Legislature’s passage, and September 29, 2019 enactment, of Senate 
Bill (SB) 10131

. Petitioner seeks to return to state court to assert an undefined number of claims, 

but it appears that petitioner will allege that because his crimes of conviction are no longer 

subject to the death penalty in Oregon, his death sentence violates his Constitutional rights under 

the Eighth Amendment—as incorporated by the Fourteenth Amendment—to be free from cruel 

and unusual punishment. Respondent argues that the claims he anticipates petitioner to put 

forward are either procedurally defaulted or plainly meritless. 

Relevant Procedural History

Petitioner timely filed his Notice of Intent to File a Capital Habeas Petition in this federal 

case on September 30, 2014 [1], and the Petition was timely filed on August 19, 2015 [15]. The 

parties have completed the initial rounds of briefing on exhaustion and procedural default, and I 

issued an Opinion and Order last fall with rulings on relevant claims [50]. Merits briefing is 

currently pending in this case. In lieu of a response to respondent’s brief on the merits [64], 

petitioner has instead filed the instant motion requesting a stay of these federal proceedings [66]. 

Discussion

As the parties acknowledge, the Petition in this case is not mixed. Accordingly, should 

the Court exercise its discretion to grant a stay in this matter, it must do so pursuant to Kelly v. 

Small, 315 F.3d 1063 (2003) (overruled on other grounds). “The two approaches [set out in 

Rhines and Kelly] are distinct: Rhines applies to mixed petitions, whereas the three-step Kelly 

procedure applies to stays of fully exhausted petitions.” Jackson v. Roe, 425 F.3d 654, 661 (9th 

Cir. 2005) (emphasis in original). The Kelly approach proceeds as follows: (1) a petitioner 

amends his petition to delete any unexhausted claims; (2) the Court stays and holds in abeyance 

 

1 Briefly, SB 1013 narrows the set of circumstances that meet the definition of aggravated murder, the only crime 

punishable by death in Oregon. While petitioner's crime would not qualify as aggravated murder under the new law, 

the legislature explicitly provided that the law does not apply retroactively.
the amended, fully-exhausted petition, allowing petitioner the opportunity to proceed to state 

court to exhaust his deleted claims; and (3) the petitioner later amends his petition and reattaches 

the newly-exhausted claims in the original petition. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 

2009) (citing Kelly, 315 F.3d at 1070-71); see also Robbins v. Carey, 481 F.3d 1143, 1149 (9th 

Cir. 2007) (Kelly procedure remains in place post-Rhines). In contrast to a Rhines stay, the Kelly 

procedure does not require a petitioner to demonstrate good cause for failing to exhaust claims in 

state court. Id. at 1140.

Petitioner should be aware, however, that under the Kelly procedure, he may be precluded 

from adding any newly-exhausted claim if the claim is either untimely or not sufficiently related 

to his current claims. See 28 U.S.C. § 2244(d); King, 564 F.3d at 1140-41. Although a federal 

habeas petitioner may seek to amend a timely-filed petition with new claims following the 

expiration AEDPA’s statute of limitations, any such claims must otherwise be timely, as well as 

“relate back” to timely claims in the petition. Mayle v. Felix, 545 U.S. 644, 662 (2005) (“An 

amended habeas petition ... does not relate back (and thereby escape AEDPA’s one-year time 

limit) when it asserts a new ground for relief supported by facts that differ in both time and type

from those the original pleading set forth.”); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 

n.6 (2005). 

Here, the Court recognizes that petitioner is not beginning with a mixed petition, as 

presently there are no unexhausted claims to dismiss. As such, he is in the same procedural 

position as a petitioner who had already undertaken the first step of the Kelly procedure. 

Respondent further argues that petitioner’s claims are not premised on SB 1013, and because the 

claims could or should have been raised in prior state court proceedings, they are either 

procedurally or technically defaulted. For these reasons, respondent contends that granting a 
stay under Rhines or Kelly would be futile. See, e.g., Knowles v. Muniz, 228 F.Supp.3d 1009, 

1016 (C.D. Cal. 2017) (courts should not grant a stay under Rhines or Kelly to allow a petitioner 

to exhaust a meritless claim). 

Respondent anticipates that petitioner’s proposed new claims will include an assertion 

that the future dangerousness inquiry violates Furman v. Georgia, 408 U.S. 238 (1972) (per 

curiam) and its progeny because, despite working as an element of the crime of aggravated 

murder and as a factor to guide the jury’s discretion in the sentencing phase of a capital trial, 

future dangerousness cannot be predicted to any level of certainty. Based on similar filings in 

other death penalty habeas cases in the District of Oregon, it appears likely that petitioner will 

allege that the inherent uncertainty in establishing the likelihood of future dangerousness beyond 

a reasonable doubt, the element/factor does not satisfy the heightened reliability requirements of 

the Eight Amendment to the United States Constitution. The Court further anticipates that 

petitioner will propose that, with the elimination of future dangerousness as an element of the 

crime and factor under the sentencing scheme, the Legislative and Executive branches of the 

State of Oregon have essentially “admitted” that the inquiry is constitutionally infirm. 

Respondent argues that the passage of SB 1013 “merely provides petitioner with new 

evidence to support an already available ground for post-conviction relief” concerning the import 

of the future dangerousness claims. [68 at 5-6]. However, considering the fundamental nature of 

the change in Oregon’s death penalty scheme with the abandonment of the future dangerousness 

inquiry, this Court is satisfied that related claims are in a “significantly different and stronger 

evidentiary posture than . . . when the state courts considered it.” Dickens, 740 F.3d at 1318 

(quoting Aiken v. Spalding, 841 F.2d 881, 883, 884 n.3 (9th Cir. 1988)). Further, because the 
new provisions of SB 1013 were enacted only very recently on September 29, 2019, it is evident 

that petitioner could not have raised such claims any earlier in state court. 

Indeed, this Court is satisfied that the types of claims petitioner proposes are not 

frivolous. As petitioner notes, the Connecticut Supreme Court, in the wake of that state passing 

non-retroactive legislation abolishing the death penalty, determined that Connecticut’s death 

penalty no longer comported with the standards of decency or penological purposes of the state 

constitution’s prohibition on cruel and unusual punishment, and eliminated it altogether, even for

offenders who committed crimes before the legislation’s effective date. See State v. Santiago, 

318 Conn. 1, 86-87 (2015); but cf. Lambrix v. Secretary, DOC, 872 F.3d 1170 (11th Cir. 2017) 

(per curiam). Although the Santiago court limited its holding to a violation of Connecticut’s 

constitution, and the Lambrix court determined that Florida did not have to apply its statutory 

changes retroactively, the fact that state courts have grappled with analogous legislation 

demonstrates that there is a reasonable likelihood that the Oregon courts will examine 

petitioner’s claims on the merits. That said, the Court need not, and does not, predict whether 

petitioner will prevail on the merits of his constitutional claims in state court. 

Finally, petitioner's indication that he will file a successive post-conviction petition in 

state court raises the question as to whether this Court may continue adjudicating his fully 

exhausted federal habeas Petition while the Oregon courts address his new unexhausted claims. 

Although the question is not settled in the Ninth Circuit, existing authority suggests that such 

parallel litigation is disfavored, if not completely prohibited. Sherwood v. Tompkins, 716 F.2d 

632, 634 (9th Cir. 1983) (federal petitioner must await the exhaustion of all of his state-court 

challenges, even where the single issue to be challenged in a federal habeas action has already 

been settled by the state courts, because other state-court challenges may result in the relief 
sought by petitioner); see also Edelbacher v. Calderon, 160 F.3d 582, 587 (9th Cir. 1998) 

(“[O]ur federal judiciary, anxious though it may be to vindicate and protect federal rights and 

federal interests, always endeavors to do so in ways that will not unduly interfere with the 

legitimate activities of the States.”) (quoting Younger v. Harris, 401 U.S. 37, 43-45 (1971) 

(internal quotation marks omitted)). 

The considerations of comity and judicial efficiency favor allowing petitioner to stay this 

proceeding until the Oregon state courts have been provided the initial opportunity to weigh in 

on the Constitutional question raised by the passage and enactment of SB 1013. The Court is 

also cognizant of the substantial public resources that proceeding with parallel state and federal 

post-conviction litigation—assuming such action is permissible—would involve. For these 

reasons, the Court is convinced that the stay-and-abeyance procedure set out in Kelly is 

appropriate and prudent at this time. 

Conclusion

Based on the foregoing, the Court concludes that there is a reasonable chance that the 

Oregon courts will address the merits of at least one of his anticipated constitutional claims, 

including claims alleging that because his crimes of conviction are no longer subject to the death 

penalty in Oregon, and that his death sentence now violates the Eighth Amendment's prohibition 

on cruel and unusual punishment. Accordingly, a stay of these federal habeas proceedings is 

appropriate. The Court GRANTS petitioner’s Motion to Stay [66] in accordance with Kelly v. 

Small, 315 F.3d 1063 (9th Cir. 2003). 

This action is STAYED during the pendency of petitioner’s state post-conviction 

proceedings. Petitioner shall file his state court petition within 60 days of the date of this Order 

and must move to lift this stay within 60 days of the completion of the state court proceedings. 
IT IS SO ORDERED.

DATED this 23rd day of December, 2019.

__s/Michael J. McShane_____________

Michael McShane

United States District Judge