Bearup v. Shinn

• Court: District Court, D. Arizona
• Decided: January 27, 2023
• Docket: 2:16-cv-03357
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Patrick Wade Bearup, No. CV-16-03357-PHX-SPL

10 Petitioner, ORDER

11 v. DEATH PENALTY CASE

12 David Shinn, et al.,

13 Respondents. 14 15 Patrick Wade Bearup is an Arizona death row inmate seeking federal habeas relief. 16 Pending before the Court is his motion for stay and abeyance. (Doc. 140.) Citing the 17 Supreme Court’s decision in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), Bearup asks the 18 Court to stay this habeas proceeding and hold it in abeyance while he returns to state court 19 to exhaust three claims alleging ineffective assistance of trial counsel—Claims 2, 3, and 5 20 of his amended habeas petition. (Id.) Respondents oppose a stay. (Docs. 142–144.) Bearup 21 also asks the Court to appoint his federal habeas counsel to represent him on his return to 22 state court. (Doc. 140.) 23 I. BACKGROUND 24 Bearup was convicted and sentenced to death for his participation in the February 25 2002 murder of Mark Mathes. Bearup, together with Sean Gaines, Jessica Nelson, and 26 Jeremy Johnson beat and shot Mathes to death. 27 28 1 Nelson was living at the Mathes residence. At one point she realized she was 2 missing $600 and suspected Mathes had stolen it. Nelson told Gaines about her suspicions. 3 Gaines instructed her to call him when Mathes returned home. 4 When Mathes arrived, Nelson invited him to have a beer and hang out with her on 5 the back patio. She called Gaines and told him Mathes was home. Gaines, Bearup, and 6 Johnson soon arrived at the Mathes residence armed with a baseball bat and a shotgun. 7 They beat Mathes, put him in the trunk of their car, and drove to the Crown King area north 8 of Phoenix. Gaines and Nelson stripped him to make the body more difficult to identify. 9 As Nelson was trying to remove a ring from Mathes’s finger, Bearup approached and cut 10 the finger off with a pair of wire clippers. Mathes was then thrown over a guardrail. While 11 he lay in the ravine, Gaines shot him twice. 12 Johnson and Nelson pleaded guilty to second-degree murder and kidnapping. 13 Bearup was indicted on one count of first-degree murder and one count of kidnapping. At 14 trial, he presented alibi and mistaken identity defenses. The jury found him guilty on both 15 counts. The jury then found two aggravating factors: a previous conviction for a serious 16 offense, A.R.S. § 13–703(F)(2), and the commission of the offense in an especially 17 heinous, cruel, or depraved manner, (F)(6).1 18 Bearup represented himself at sentencing and waived the presentation of mitigating 19 evidence. The jury returned a verdict of death for the murder. 20 The Arizona Supreme Court affirmed the convictions and sentences on direct 21 appeal. State v. Bearup, 221 Ariz. 163, 166–67, 211 P.3d 684, 687–88 (2009). After 22 unsuccessfully pursuing post-conviction relief (“PCR”) in state court, Bearup filed a 23 petition for writ of habeas corpus in this Court on August 25, 2017, and an amended petition 24 on September 18, 2017. (Docs. 34, 39.) 25

26 1 At the time of Bearup’s offense, Arizona’s capital sentencing scheme was set forth in A.R.S. §§ 13–703 and 13–703.01 to –703.04. It is presently set forth in A.R.S. §§ 13– 27 751 to –759. The Court refers throughout this order to the statutes in effect at the time 28 Bearup committed the murder. 1 II. APPLICABLE LAW 2 A. Stay and Abeyance 3 A district court is authorized to stay a petition in “limited circumstances” to allow a 4 petitioner to present unexhausted claims to the state court without losing the right to federal 5 habeas review under the relevant one-year statute of limitations.2 Rhines v. Weber, 544 6 U.S. 269, 273–77 (2005). Under Rhines, “a district court must stay a mixed petition”—that 7 is, a petition containing both exhausted and unexhausted claims—“only if: (1) the 8 petitioner has ‘good cause’ for his failure to exhaust his claims in state court; (2) the 9 unexhausted claims are potentially meritorious; and (3) there is no indication that the 10 petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 11 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 12 The Rhines “good cause” standard does not require “extraordinary circumstances.” 13 Id. at 1024 (citing Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005)). However, courts 14 “must interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of the 15 Supreme Court’s instruction in Rhines that the district court should only stay mixed 16 petitions in ‘limited circumstances.’” Id. (citing Jackson, 425 F.3d at 661). Courts must 17 also “be mindful that AEDPA aims to encourage the finality of sentences and to encourage 18 petitioners to exhaust their claims in state court before filing in federal court.” Id. (citing 19 Rhines, 544 U.S. at 276–77). 20 B. Exhaustion 21 The Rhines procedure for staying a petition applies only to mixed 22 petitions. See King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009) (explaining that 23 the Rhines exception to the total exhaustion rule carved out an exception allowing mixed 24 petitions to remain pending in federal court under limited circumstances). A claim is 25 exhausted if (1) it has been fairly presented to the highest state court with jurisdiction to 26 consider it or (2) no state remedy remains available for the claim. Johnson v. Zenon, 88 27

28 2 The Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1). 1 F.3d 828, 829 (9th Cir. 1996). The latter form of exhaustion, where a petitioner has failed 2 to meet the State’s procedural requirement for presenting a claim in state court, is described 3 as “technical exhaustion” through procedural default. See Coleman v. Thompson, 501 U.S. 4 722, 732 (1991) (“A habeas petitioner who has defaulted his federal claims in state court 5 meets the technical requirements for exhaustion; there are no state remedies any longer 6 ‘available’ to him.”); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (observing 7 that if state court where petitioner would be required to present the claims would find the 8 claims procedurally barred, petitioner has technically exhausted the claims through 9 procedural default). 10 In Coleman, the Supreme Court held that a petitioner who fails to comply with state- 11 law procedural requirements in presenting his claims is barred by the adequate and 12 independent state ground doctrine from obtaining a writ of habeas corpus in federal court. 13 Coleman, 501 U.S. at 731–32; see Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) 14 (“An unexhausted claim will be procedurally defaulted, if state procedural rules would now 15 bar the petitioner from bringing the claim in state court.”). As discussed below, application 16 of a state’s procedural rule can result in technical exhaustion only where that rule is 17 “independent of federal law,” see Stewart v. Smith, 536 U.S. 856, 859–60 (2002), and 18 “firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) 19 (quoting Beard v. Kindler, 558 U.S. 53, 60–61 (2009)). 20 A default may be excused only if “a constitutional violation has probably resulted 21 in the conviction of one who is actually innocent,” or if the petitioner demonstrates cause 22 for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 23 To demonstrate cause, the petitioner must establish that “some objective factor external to 24 the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 25 488. “[T]o establish prejudice, [a petitioner] must show not merely a substantial federal 26 claim, such that ‘the errors at . . . trial created a possibility of prejudice,’ but rather that the 27 constitutional violation ‘worked to his actual and substantial disadvantage.’” Ramirez, 142 28 S. Ct. at 1734–35 (quoting Carrier, 477 U.S. at 494). 1 In Martinez v. Ryan, the Supreme Court held for the first time that ineffective 2 assistance of PCR counsel may serve as cause to excuse the default of a claim of ineffective 3 assistance of trial counsel. 566 U.S. 1, 17 (2012); see also Trevino v. Thaler, 569 U.S. 413, 4 423 (2013). 5 In the wake of Martinez, the Ninth Circuit held that federal habeas courts may take 6 new evidence to determine whether a defaulted claim of ineffective assistance of trial 7 counsel was substantial. Dickens, 740 F.3d at 1321. In Dickens, the court explained that 28 8 U.S.C. § 2254(e)(2) did not bar the district court from holding an evidentiary hearing, 9 because a petitioner seeking to show cause based on ineffective PCR counsel is “not 10 asserting a ‘claim’ for relief as that term is used in § 2254(e)(2).”3 Id. 11 In Ramirez, however, the Supreme Court held that in adjudicating a Martinez claim, 12 “a federal habeas court may not conduct an evidentiary hearing or otherwise consider 13 evidence beyond the state-court record based on ineffective assistance of state post- 14 conviction counsel” unless the petitioner satisfies the stringent requirements of 28 U.S.C. 15 § 2254(e)(2). 142 S. Ct. at 1734. Until Ramirez, in other words, petitioners like Bearup 16 had the opportunity to present new evidence in federal court pursuant to Martinez even if 17 the requirements of § 2254(e)(2) were not satisfied. After Ramirez, a federal habeas court 18 may not consider such evidence, even when reviewing a petitioner’s claim of good cause 19 for failure to exhaust a claim, unless it first meets the requirements of § 2254(e)(2). 20 /// 21 /// 22 /// 23

24 3 Section 2254(e)(2) provides that if a petitioner failed to develop the factual basis of a claim in state court, he is not entitled to a federal evidentiary hearing unless the claim 25 “relies on a new rule of constitutional law . . . or a factual predicate that could not have 26 been previously discovered through the exercise of due diligence . . . and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that 27 but for constitutional error, no reasonable factfinder would have found the applicant guilty 28 of the underlying offense.” 1 III. DISCUSSION 2 Under Rhines, the Court must first determine whether Bearup’s habeas petition is 3 mixed. At issue are three ineffective assistance of counsel (IAC) claims, Claims 2, 3, and 4 5. 5 Claim 2 alleges that attorney David DeLozier was unqualified to represent Bearup 6 as lead counsel in his capital trial and misrepresented his qualifications in order to obtain 7 court appointment. (Doc. 39 at 67.) The parties agree that Bearup did not raise the claim in 8 state court. They disagree, however, about the claim’s procedural status. Respondents 9 contend the claim is technically exhausted because Arizona’s procedural rules would 10 prevent Bearup from returning to state court to raise the claim. (Doc. 142 at 4–5.) They 11 argue that a stay would be futile for the same reason. (Id.) Bearup counters that these rules, 12 including Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure, are not an “adequate 13 and independent procedural bar to review of this type of Claim.” (Doc. 140 at 3.) He further 14 argues that any waiver of the right to counsel must be made knowingly, voluntarily, and 15 intelligently before Rule 32.2(a)(3) can act as a procedural bar. (Id. at 3–4.) 16 Rule 32 of the Arizona Rules of Criminal Procedure (“Rule 32”) governs PCR 17 proceedings. It provides, as relevant here, that a petitioner is precluded from relief on any 18 claim that could have been raised on appeal or in a prior PCR petition pursuant to Rule 19 32.2(a)(3). Only if a claim falls within certain exceptions, including newly discovered 20 evidence and actual innocence, and the petitioner can justify his omission of the claim from 21 a prior petition, may the preclusive effect of Rule 32.2(a) be avoided. See Ariz. Rule Crim. 22 Proc. 32.1(d)–(h), 32.2(b). The Ninth Circuit has held that Rule 32.2(a)(3) “is independent 23 of federal law and has been regularly and consistently applied, so it is adequate to bar 24 federal review of a claim.” Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012). 25 Bearup notes that Rule 32.2(a)(3) does not apply to claims that “affected a right of 26 constitutional magnitude” if the petitioner did not personally waive the claim. (Doc. 140 at 27 3–4) (citing Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002)). Bearup’s 28 ineffective assistance of counsel claims, however, do not fall within the limited framework 1 of claims requiring a knowing, voluntary, and intelligent waiver before the application of 2 a preclusion finding. See Ariz. Rule Crim. Proc. 32.2(a)(3) cmt. (West 2004) (explaining 3 that most claims of trial error do not require a personal waiver); Smith, 202 Ariz. at 449, 4 46 P.3d at 1070 (identifying the right to counsel, right to a jury trial, and right to a 12- 5 person jury under the Arizona Constitution as the type of claims that require personal 6 waiver); see State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App. 2007) (“An 7 alleged violation of the general due process right of every defendant to a fair trial, without 8 more, does not save that belated claim from preclusion.”). Additionally, if different 9 ineffective assistance allegations are raised in successive petitions, the claim in the later 10 petition will be precluded without a review of the constitutional magnitude of the claim. 11 See Smith, 202 Ariz. at 450, 46 P.3d at 1071 (“The ground of ineffective assistance of 12 counsel cannot be raised repeatedly.”) 13 In his PCR petition, Bearup raised several other claims of ineffective assistance of 14 counsel. (See Doc. 46-1, Ex. PPPPP; Doc. 46-2, Ex. RRRRR.) Therefore, successive claims 15 of ineffective assistance, such as Claim 2, are necessarily precluded. See Armstrong v. 16 Ryan, No. CV-15-00358-TUC-RM, 2017 WL 1152820, at *6 (D. Ariz. Mar. 28, 2017) 17 (“Because Petitioner would not be able to exhaust Claim 1(A) in a successive state petition 18 for post-conviction relief, Petitioner’s IAC claim is ‘technically’ exhausted, and 19 a Rhines stay would be inappropriate.”); see also Lopez v. Schriro, No. CV-98-0072-PHX- 20 SMM, 2008 WL 2783282, at *9 (D. Ariz. July 15, 2008), amended in part, No. CV-98- 21 0072-PHX-SMM, 2008 WL 4219079 (D. Ariz. Sept. 4, 2008), and aff'd sub nom. Lopez v. 22 Ryan, 630 F.3d 1198 (9th Cir. 2011) (“[I]f additional ineffectiveness allegations are raised 23 in a successive petition, the claims in the later petition necessarily will be precluded.”). 24 Bearup also asserts that Rule 32.2(a) is not firmly established with respect to the 25 specific allegation that counsel misrepresented his qualifications to represent a capital 26 defendant. (Doc. 140 at 3.) 27 Contrary to Bearup’s argument, however, there is nothing unique about the 28 allegations in Claim 2. Rather, they simply state an ineffective assistance of counsel claim. 1 Cf. Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (analyzing petitioner’s 2 ineffective assistance claim under Strickland and finding that counsel’s lack of experience 3 and heavy caseload did not “in and of themselves amount to a Strickland violation” absent 4 a showing of prejudice4); Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) (applying 5 Strickland analysis to claim that counsel were presumptively ineffective because they did 6 not meet state standard for representation of capital defendants). 7 Claim 2 is therefore technically exhausted through procedural default. Coleman, 8 501 U.S. at 732. 9 Claim 3 alleges that counsel unreasonably chose and presented an unsupported alibi 10 defense. (Doc. 39 at 88.) Bearup raised this allegation during the PCR proceedings. (PCR 11 Pet., Doc. 46-2, Ex. RRRRR, at 5–27.) The PCR court denied the claim on the merits. (ME 12 3/16/05, Doc. 46-4, Ex. DDDDDDDD, Appx A, at 4–7.) 13 Claim 5 alleges that DeLozier failed to investigate mitigating evidence and 14 unreasonably advised Bearup regarding mitigation. (Doc. 39 at 154.) Bearup raised these 15 allegations in his PCR petition (PCR Pet., Doc. 46-2, Ex. RRRRR, at 59–65) and the court 16 denied them as meritless (ME 3/16/05, Doc. 46-4, Ex. DDDDDDDD, Appx A, at 15). 17 Claims 3 and 5 were raised in Bearup’s petition for review (PR, Doc. 46-4, Ex. 18 DDDDDDDD at 5–13, 35–39), which the Arizona Supreme Court summarily denied (Doc. 19 46-3, Ex. CCCCCCCC). 20 With respect to the procedural status of these claims, Bearup’s position is that under 21 Dickens, 740 F.3d 1302, the new facts he has proffered in these habeas proceedings have 22 fundamentally altered the claims from those he presented during the PCR proceedings, so 23 that Claims 3 and 5 are now unexhausted. (See Doc. 140 at 10; Doc. 39 at 89, 155.) 24 Respondents contend that Claim 3 (with the exception of some subclaims) and Claim 5 25 were raised in state and exhausted by the PCR court’s merits ruling. (Doc. 142 at 10.) 26 27

28 4 Under Strickland v. Washington, 466 U.S. 668 (1984), a claim of ineffective assistance consists of two prongs: deficient performance and prejudice. 1 Bearup acknowledges the argument that these claims are exhausted, either 2 technically or by the PCR court’s merits review. (Doc. 140 at 10–11; Doc. 146 at 8.) He 3 contends that a Rhines stay is nevertheless appropriate because “Ramirez now requires 4 actual rather than technical exhaustion and demands that all evidence supporting an IAC 5 claim defaulted by ineffective postconviction counsel be presented to the state courts.” 6 (Doc. 146 at 8.) Bearup argues that after Ramirez, “[c]omity militates in favor of submitting 7 Claims 3 and 5 to the state courts—together with their substantial new supporting 8 evidence—so that they, rather than a federal court, can pass first on whether the claims 9 warrant relief.” (Doc. 140 at 11.) According to Bearup, “This approach would mitigate the 10 unfairness of trapping petitioners in federal court with no way to have new evidence 11 considered in support of claims defaulted by ineffective state postconviction counsel.” (Id.) 12 Bearup’s argument fails with respect to Claims 3 and 5. First, the claims were 13 actually, rather than technically, exhausted. The argument that they have been 14 fundamentally altered is unpersuasive. 15 In Dickens, the Ninth Circuit held that factual allegations not presented to a state 16 court may render a claim unexhausted if the new allegations “fundamentally alter” the 17 claim or place the case in a significantly different and stronger evidentiary posture than it 18 was when the state court considered it. 740 F.3d at 1318–19. In state court Dickens had 19 raised only general allegations that “sentencing counsel did not effectively evaluate 20 whether Dickens ‘suffer[ed] from any medical or mental impairment.’” Id. at 1319. In his 21 federal habeas petition, he “changed his claim to include extensive factual allegations 22 suggesting [he] suffered from Fetal Alcohol Syndrome and organic brain damage.” Id. at 23 1317. The court found that Dickens’s “new evidence creates a mitigation case that bears 24 little resemblance to the naked Strickland claim raised before the state courts,” and that 25 specific conditions like Fetal Alcohol Syndrome and organic brain damage placed the 26 claim in a “significantly different” and “substantially improved” evidentiary posture. Id. 27 1319. 28 1 In contrast to Dickens, the new information Bearup offers “merely provide[s] 2 additional evidentiary support” for the already-adjudicated state court claims. Escamilla v. 3 Stephens, 749 F.3d 380, 395 (5th Cir. 2014). As Respondents note, the new evidence 4 supporting Claim 3 is largely cumulative to the evidence and arguments presented in the 5 PCR petition, which alleged that Bearup’s alibi was “impossible” and “false,” that trial 6 counsel were aware of this fact, and that choosing to present such a defense amounted to 7 ineffective assistance. (PCR Pet. at 20, 21.) See Williams v. Filson, 908 F.3d 546, 573–76 8 (9th Cir. 2018) (finding that a new forensic report “merely” corroborated the allegations in 9 the state court petition and did not place the claim in a “significantly different and stronger 10 evidentiary posture” or transform it “into a new and unexhausted claim”); Lee v. Ryan, No. 11 CV-04-0039-PHX-JTT, 2019 WL 1932110, at *1 (D. Ariz. May 1, 2019) (explaining that 12 a “claim of ineffective assistance of counsel is not fundamentally altered by new factual 13 allegations related to the specific claim raised in state court”). 14 With respect to Claim 5, the new evidence consists of the same categories of 15 mitigating evidence cited in the PCR petition. While Bearup adds new mental health 16 diagnoses to those supporting the ineffective assistance of counsel claim in state court, the 17 “heart of the claim remains the same.” Gray v. Zook, 806 F.3d 783, 799 (4th Cir. 2015) 18 (finding the new evidence “merely strengthens the evidence presented in the state PCR 19 proceedings”); see Creech v. Richardson, 40 F.4th 1013, 1029 (9th Cir. 2022) (finding new 20 evidence “duplicative” of evidence presented in state court); Weaver v. Thompson, 197 21 F.3d 359, 364 (9th Cir. 1999); Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 22 1994), superseded by statute on other grounds, 28 U.S.C. § 2253(c). 23 Alternatively, even if the claims have been altered, becoming unexhausted and 24 therefore subject to analysis under Martinez in this Court, Bearup would not be entitled to 25 a Rhines stay. As discussed with respect to Claim 2, the state court would find the newly- 26 raised claims precluded under Rule 32.2(a)(3). Therefore, to the extent they are not actually 27 exhausted, Claims 3 and 5 are technically exhausted. 28 1 Because Claims 2, 3, and 5 are all exhausted, the petition is not mixed, and Rhines 2 is not applicable. Bearup is not entitled to a stay.5 3 III. APPOINTMENT OF COUNSEL 4 Bearup asks the Court to authorize the Federal Public Defender’s (“FPD”) office to 5 represent him in state court. The Criminal Justice Act provides for appointed counsel to 6 represent their client in “other appropriate motions and procedures.” 18 U.S.C. § 3599(e). 7 The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009), 8 holding that the statute “authorizes federally appointed counsel to represent their clients in 9 state clemency proceedings and entitles them to compensation for that representation.” Id. 10 at 194. The Court explained that “subsection (a)(2) triggers the appointment of counsel for 11 habeas petitioners, and subsection (e) governs the scope of appointed counsel’s duties.” Id. 12 at 185. The Court noted, however, that appointed counsel is not expected to provide each 13 of the services enumerated in section (e) for every client. Rather, “counsel’s representation 14 includes only those judicial proceedings transpiring ‘subsequent’ to her appointment.” Id. 15 at 188. 16 Harbison addressed the concern that under the Court’s interpretation of § 3599, 17 federally appointed counsel would be required to represent their clients in state retrial or 18 state habeas proceedings that occur after counsel’s appointment because such proceedings 19 are also “available post-conviction process.” Id. The Court explained that § 3599(e) does 20 not apply to those proceedings because they are not “properly understood as a ‘subsequent 21

22 5 Bearup has filed a Notice of Supplemental Authority, citing Pandeli v. Shinn, No. CV- 23 17-01657-PHX-JTT, 2022 WL 16855196 (D. Ariz. Nov. 10, 2022), which granted the petitioner’s post-Ramirez motion for a Rhines stay. Pandeli is distinguishable because there 24 the Respondents conceded that the habeas petition was mixed. However, even if the facts of the cases were the same, “the prior resolution of those claims does not bar 25 reconsideration by another district judge of similar contentions.” In re Walk v. Thurman, 26 2012 WL 3292934, at *7 (D. Utah Aug. 10, 2012) (“Where a second judge believes that a different result may obtain, independent analysis is appropriate.”); see Camreta v. Greene, 27 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court judge is not binding 28 precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”). 1 stage’ of judicial proceedings but rather as the commencement of new judicial 2 proceedings.” Id. at 189. 3 As to state post-conviction proceedings, the Court noted, “State habeas is not a stage 4 ‘subsequent’ to federal habeas. . . . That state postconviction litigation sometimes follows 5 the initiation of federal habeas because a petitioner has failed to exhaust does not change 6 the order of proceedings contemplated by the statute.” Id. at 189–90; see Irick v. Bell, 636 7 F.3d 289, 292 (6th Cir. 2011); Lugo v. Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 8 (11th Cir. 2014), cert. denied sub nom. Lugo v. Jones, 135 S. Ct. 1171 (2015) (explaining 9 “a state prisoner is not entitled, as a matter of statutory right, to have federally paid counsel 10 assist him in the pursuit and exhaustion of his state postconviction remedies, including the 11 filings of motions for state collateral relief. . . .”). 12 Nevertheless, the Court has discretion to appoint federal counsel to represent Bearup 13 in state court. In Harbison the Supreme Court noted that “a district court may determine 14 on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the 15 course of her federal habeas representation.” 556 U.S. at 190 n.7. 16 Here, however, the Court has determined that Bearup is not entitled to a Rhines stay. 17 Based on that determination, together with the Harbison Court’s discussion of the 18 parameters of § 3599(e), the Court finds it is not appropriate to authorize the FPD to 19 represent Bearup in state court. 20 IV. CONCLUSION 21 Bearup has not demonstrated that a Rhines stay is warranted. “The point of a Rhines 22 stay is to allow a federal habeas petitioner an opportunity to present unexhausted claims in 23 state court.” Pritchett v. Gentry, No. 217CV01694JADDJA, 2022 WL 4366996, at *4 (D. 24 Nev. Sept. 21, 2022); see Anderson v. Jennings, No. 1:19-CV-00014 JAR, 2022 WL 25 17480616, at *3 (E.D. Mo. Nov. 21, 2022). Bearup’s claims are either actually or 26 technically exhausted; therefore, his petition is not mixed. In addition, granting Bearup’s 27 request for a Rhines stay would be contrary to the Supreme Court’s directive that such stays 28 should be granted only in limited circumstances and that courts must be ‘mindful that 1 || AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust 2|| their claims in state court before filing in federal court.’” /d. (quoting Rhines, 544 USS. at 3 || 276-77). 4 Accordingly, 5 IT IS HEREBY ORDERED denying Bearup’s Motion for a Stay and || Abeyance (Doc. 140). 7 IT IS FURTHER ORDERED denying Bearup’s request for federal habeas 8 || counsel to represent him in state court (id.). 9 Dated this 26th day of January, 2023. 10

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