Bearup v. Shinn

District Court, D. Arizona·Decided August 30, 2023·No. 2:16-cv-03357·Unknown

Opinion

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

Petitioner, ORDER

v. DEATH PENALTY CASE

Ryan Thornell, et al.,

Respondents. Bearup moves to reconsider the Court’s 2020 Order denying his motion to stay this case pending a decision in State v. Cruz (Cruz I), CR 17-0567-PC (Ariz.). (Docs. 122, 125, and 151; Doc. 122-2 at 3.) In his motion to reconsider, Bearup does not seek reconsideration of the denial of his 2020 motion to stay. Instead, for the first time, he asks to stay this case under Rhines v. Weber, 544 U.S. 269 (2005), so that he may exhaust some of his habeas claims in state court. (Doc. 151.) In doing so, he does seek reconsideration of two findings in the 2020 Order that would, if not reversed, defeat a Rhines stay. (Id.) The Court will therefore construe the motion to reconsider as a request for a Rhines stay in the first instance. But in assessing the request for a Rhines stay, the Court will address Bearup’s request to reconsider the 2020 Order’s two findings relevant to the Rhines stay request. Bearup also moves for authorization for his habeas counsel to represent him in state court to exhaust Claim 44 (as well as Claim 45). (Doc. 152.) Respondents oppose a Rhines stay and take no position on authorization. (Id. at 2; Doc. 154.) For the reasons below, the Court will deny both motions. In 1993, Arizona’s Legislature eliminated parole for felonies committed after December 31, 1993. A.R.S. § 41-1604.09(I) (West 1993). In 1994, the United States Supreme Court held in Simmons v. South Carolina that when a capital defendant’s future dangerousness is at issue and state law bars his release on parole, due process entitles him to inform the jury—through argument or jury instruction—that he would be ineligible for parole if not sentenced to death. 512 U.S. 154, 156, 177–78 (1994); see also Cruz v. Arizona (Cruz II), 598 U.S. __, 143 S. Ct. 650, 655 (2023). Years after the enactment of A.R.S. § 41-1604.09(I) and the decision in Simmons, a grand jury indicted Bearup for a 2002 kidnapping and murder. (R.O.A. 1.) The State sought a death sentence for the murder. (R.O.A. 17.) The parties’ joint questionnaire to prospective jurors stated that, if Bearup was convicted of murder, but not sentenced to death, the trial court would sentence Bearup to life in prison either with or without the “possibility of parole.” (R.O.A. 210 at 17; R.T. 11/6/06 at 3.) After the prospective jurors finished the questionnaire, and the court conducted voir dire, the court empaneled a jury. (R.T. 11/14/06 at 13.) The jury found Bearup guilty as charged. State v. Bearup, 211 P.3d 684, 688 (Ariz. 2009). At the trial’s penalty phase for the murder, Bearup represented himself. (R.T. 1/29/07 at 9.) Bearup did not request a Simmons instruction informing the jury of his parole ineligibility. (R.T. 1/31/07 at 6–7; R.T. 2/1/07 at 6, 11–13.) Without objection, the court instructed the jurors that if they spared Bearup’s life, the court would sentence him to life in prison either with, or without, the “possibility of release.” (R.T. 1/31/07 at 6–7; R.T. 2/1/07 at 17) (emphasis added). The jury sentenced Bearup to death. Bearup, 211 P.3d at 688. Bearup, again represented by counsel, did not raise a Simmons claim on direct appeal or on postconviction review (PCR) and was denied relief on each. Id. at 696. (See Opening Brief; Doc. 46-2, Ex. RRRRR; Doc. 46-3, Ex. YYYYYY; 9/21/16 Order.) In 2015, the Arizona Supreme Court held in State v. Lynch (Lynch I) that a trial court did not err in refusing a Simmons instruction, citing A.R.S. § 41-1604.09(I), because the defendant was eligible for other forms of release, such as clemency. 357 P.3d 119, 138 (Ariz. 2015) (citing A.R.S. § 13-703(A), renumbered as § 13-751(A)). In May 2016, the United States Supreme Court reversed Lynch I, holding that future clemency, or enactment of a statute restoring parole, did not “diminish[ ] a capital defendant’s right to inform a jury of his parole ineligibility.” Lynch v. Arizona (Lynch II), 578 U.S. 613, 615 (2016) (citing Simmons, 512 U.S. at 166, 177). On October 3, 2016, Bearup commenced this habeas case, and the Court appointed the Arizona Federal Public Defender’s Office to represent him in this case but barred counsel from representing him “in state forums or prepare any state court pleadings” absent the Court’s “express authorization.” (Doc. 1; Doc. 6 at 1.) Bearup filed a petition in 2017. (Doc 39.) In Claim 44, Bearup claims that the trial court violated his Fourteenth Amendment due process rights under Simmons and Lynch II by not instructing the jury that he was ineligible for parole.1 (Doc. 39 at 382–84.) He acknowledges that he did not raise this claim in state court but purported to reserve the right to request a stay under Rhines so that he could do so. (Id. at 382.) In their Answer, Respondents opposed a stay because the Simmons/Lynch II claim was then technically exhausted, as Bearup never raised it in state court, and he lacked good cause for not having done so, and because the claim otherwise lacked merit. (Doc. 45 at 217–19, 220–24.) In his Reply, Bearup disagreed with the Respondents’ contentions and clarified that he was not then seeking a Rhines stay. (Doc. 53 at 206–12 and n.44.) In April 2020, after the parties briefed Bearup’s habeas claims, the Arizona Supreme Court agreed to review Cruz I to address whether Lynch II was “a significant change in 1 In Claim 44, Bearup also asserts that the incorrect jury instruction on his parole eligibility also violates his Eighth Amendment right to a reliable penalty phase. (Doc. 39 at 382–84.) Because Bearup does not seek a Rhines stay to exhaust this subclaim, the Court will not consider it here. the law” under Arizona Rule of Criminal Procedure 32.1(g).2 (Doc. 122-2 at 3.) Bearup then filed his 2020 motion to stay this habeas case pending the decision in Cruz I, noting that he would seek a Rhines stay to exhaust Claim 44 in state court only if Cruz I held that Lynch II was a significant change. (Id. at 1–2.) Before the Arizona Supreme Court resolved Cruz I, the Court denied the stay motion finding the Simmons/Lynch II claim was technically exhausted where Bearup did not timely raised it in state court, and that Lynch II was not a significant change in the law under Rule 32.1(g). (Doc. 125 at 5–7.) The Court further found the Simmons/Lynch II claim meritless, as Bearup did not “ask that the jury be informed” of his parole ineligibility at trial. (Id. at 8–10.) In 2021, the Arizona Supreme Court held in Cruz I that Lynch II was not a significant change in the law under Rule 32.1(g). 487 P.3d 991 (Ariz. 2021). In 2023, the Supreme Court reversed the Arizona Supreme Court’s holding in Cruz I, that Lynch II “was not a significant change in the law for purposes of [Arizona Rule of Criminal Procedure] 32.1(g)” and that Cruz I was not based on an adequate and independent state-law ground so as to bar Cruz’s filing of a successive PCR petition asserting a Lynch II claim. Cruz II, 143 S. Ct. 650, 655 (2023) (quoting Ariz. R. Crim. P. Rule 32.1(g)). The Court also vacated “the judgments” and remanded “the cases” of other Arizona death-row prisoners “to the Superior Court of Arizona, Maricopa County for further consideration in light of Cruz [II].” Burns v. Arizona, 21-847, 598 U.

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

Petitioner, ORDER

v. DEATH PENALTY CASE

Ryan Thornell, et al.,

2 Under Rules 32.1(g) and 32.2(b), a defendant may obtain relief on successive PCR if an applicable, “significant change in the law . . . would probably overturn the defendant’s judgment or sentence.” Ariz. R. Crim. P. 32.1(g) and 32.2(b). 3 Prisoners Johnathan Burns, Steve Boggs, Ruben Garza, Fabio Gomez, Steven Newell, and Stephen Reeves filed a joint petition for a writ of certiorari that hinged on the holding in Cruz II. A. Rhines Stay Under Rhines, the Court may stay a habeas case that contains both exhausted and unexhausted claims while the petitioner exhausts his unexhausted claims in state court, before returning to the habeas court for review of the fully exhausted petition. 544 U.S. at 271–79. A Rhines stay is proper only if the petitioner shows (1) “good cause” for the failure to exhaust, (2) the unexhausted claim is “potentially meritorious,” and (3) the petitioner did not “engage[] in intentionally dilatory litigation tactics.” Id. at 277–78. Because a Rhines stay applies solely to a petition containing both exhausted and unexhausted claims, i.e., a “mixed petition,” this Court first decides whether Claim 44 is unexhausted. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009); see also, Bearup v. Shinn, No. CV-16-03357- PHX-SPL (D. Ariz. Jan. 26, 2023) (Doc. 150). B. Exhaustion A petitioner has not exhausted a habeas claim in state court “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). A claim is exhausted if (1) it has been fairly presented to the highest state court with jurisdiction to consider it or (2) no state remedy remains available to exhaust the claim. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). No state remedy remains available if the state’s procedural rules bar a state court from considering the claim, resulting in the claim being “technically exhausted.” See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)); Coleman v. Thompson, 501 U.S. 722, 732 (1991) (citing 28 U.S.C. § 2254(b); Engle v. Isaac, 456 U.S. 107, 125–26 n.28 (1982)) (claims defaulted in state court); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007). Hence, a Rhines stay should not be granted if a petition contains only claims that are either actually, or technically, exhausted. See, e.g., Pritchett v. Gentry, No. 2:17-cv-01694-JAD- DJA, 2022 WL 4366996, at *4 (D. Nev. Sept. 21, 2022) (noting “[t]he point of [the] stay is to allow” presentment of “unexhausted claims” in state court); White v. Ryan, No. CV- 09- 2167-PHX-FJM (LOA), 2010 WL 1416054, at *12 (D. Ariz. Mar. 16, 2010) (denying Rhines stay of a petition that has only exhausted or technically exhausted claims). C. Arizona’s Bar on Successive Postconviction-Relief Claims Rule 32 of the Arizona Rules of Criminal Procedure governs postconviction review for those convicted and sentenced following a trial. Ariz. R. Crim. P. 32.1. As relevant here, postconviction relief is available for a constitutional violation under Rule 32.1(a), and “where there has been a significant change in the law, if applicable to the defendant’s case, [that] would probably overturn the defendant’s judgment or sentence,” under Rule 32.1(g). A constitutional claim under Rule 32.1(a) is precluded if it was “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A claim under Rule 32.1(g) is not precluded under Rule 32.2(a)(3), but if raised in a successive or untimely post- conviction notice, the defendant must explain the reasons for not raising the claim in a previous petition or in a timely manner. Ariz. R. Crim. P. 32.2(b). D. The Rhines Test Within the Context of Bearup’s Motion to Reconsider In the 2020 Order, the Court found Bearup’s Simmons/Lynch II claim was technically exhausted and otherwise meritless. Bearup asks the Court to reconsider and reverse those findings because he cannot obtain a Rhines stay unless his Simmons/Lynch II claim is unexhausted and has potential merit. See Rhines, 544 U.S. at 271–79. To that end, the Court will decide whether to grant the Rhines stay by determining whether to reconsider those two findings. Reconsideration of an order is proper if the Court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citing All Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648 (D. Haw. 1987), reversed on other grounds by 855 F.2d 860 (9th Cir. 1988)); see also LRCiv 7.2(g)(1) (The Court will reconsider an order based on either “a showing of manifest error or . . . new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.”). A. Bearup’s Simmons/Lynch II Claim Is Unexhausted Bearup argues that the Court should reconsider and reverse its prior technical- exhaustion finding based on Cruz II, an intervening change in controlling law. (Doc. 151 at 5–6.) In light of Cruz II, the Court agrees with Bearup. See 143 S. Ct. at 655. Respondents assert that the Simmons/Lynch II claim remains exhausted despite Cruz II, in essence, because it is meritless. (Doc. 154 at 7–9.) But under Rule 32.1(g), the existence of an applicable significant change in the law permits review of a claim on successive PCR. See Cruz II, 143 S. Ct. at 658 (acknowledging that “Rule 32.1(g) allows defendants to file a successive or untimely postconviction petition if there has been ‘a significant change in the law’”); see also, e.g., State v. Lawrence, No. 2 CA-CR 2016- 0080-PR, 2016 WL 3220970, at *2, ¶ 7 (Ariz. Ct. App. June 10, 2016) (citing Ariz. R. Crim. P. 32.1(g)) (stating that “under Rule 32.2(b), a defendant may avoid preclusion by showing . . . a significant change in the law”); State v. Shrum, 203 P.3d 1175, 1178 (Ariz. 2009) (“The rationale for the Rule 32.1(g) exception from waiver and preclusion is apparent: A defendant is not expected to anticipate significant future changes of the law in his of-right PCR proceeding or direct appeal.”). Bearup’s Simmons/Lynch II claim is no longer technically exhausted under Cruz II, as he may now pursue it on successive PCR under Rules 32.1(g) and 32.2(b). See Van Winkle v. Thornell, No. CV-18-03290-PHX-MTL, 2023 WL 3321709, at *4 (citing 28 U.S.C. § 2254(c)); cf. Newman v. Norris, 597 F.Supp.2d 890, 896 (W.D. Ark. 2009) (granting Rhines stay to exhaust in state court as a matter of comity); Rodriguez v. Uhler, 15cv09297 (GBD) (DF), 2017 WL 9807068, at *8 (S.D.N.Y. Oct. 23, 2017) (same). Accordingly, the Court grants reconsideration as to its previous finding in the 2020 Order and finds that Bearup’s Simmons/Lynch II claim is unexhausted. B. Bearup’s Simmons/Lynch II Claim Lacks Potential Merit Bearup also argues that the Court should reconsider and reverse its prior finding that his Simmons/Lynch II claim was meritless, implying that the finding was clearly erroneous because the claim has potential merit under Rhines. (Doc. 151 at 8–12.) Although this “potential merit,” standard is not onerous, Rhines, 544 U.S. at 277, a claim lacks potential merit if “it is perfectly clear that the [petitioner] does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Put differently, a claim has potential merit “unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’” See Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017) (quoting Cassett, 406 F.3d at 624). In short, a claim lacking potential merit is “plainly meritless.” See Rhines, 544 U.S. at 277 (citing 28 U.S.C. § 2254(b)(2)) (noting that “the district court would abuse its discretion if it were to grant [petitioner] a stay when his unexhausted claims are plainly meritless”). In finding that Bearup’s Simmons/Lynch II claim lacked merit, the 2020 Order relied on the Arizona Supreme Court’s holding in State v. Bush that a defendant who does not “request a parole ineligibility instruction at trial” does not merit relief under Simmons. 423 P.3d 370, 388, ¶ 74 (Ariz. 2018), cert. denied, 139 S. Ct. 1546 (2019). Because Bearup did not request a jury instruction or to argue his parole ineligibility at trial, this Court found that the trial court had not violated due process under Simmons, Doc. 125 at 8–10. See, e.g., Morris v. Thornell, No. CV-17-00926-PHX-DGC, 2023 WL 4237334, at *7 (D. Ariz. June 28, 2023); Payne v. Thornell, No. CV-20-0459-TUC-JAS, 2023 WL 4237335, at *3–4 (D. Ariz. June 28, 2023). Bearup does not present anything that persuades this Court to reconsider that finding. He argues that the incorrect instruction regarding his parole “eligibility” offends “basic nations of fairness and due process.” (Doc. 151 at 10–11.) An incorrect jury instruction may violate the basic due process guarantee of “fundamental fairness” if “‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). “Capital sentencing proceedings must of course satisfy the dictates” of due process. Clemons v. Mississippi, 494 U.S. 738, 746 (1990). Capital defendants are denied due process “when the death sentence was imposed, at least in part, on the basis of information which [the defendant] had no opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362 (1977). But under Simmons, due process entitles a capital defendant the opportunity to rebut alleged future dangerousness by having the jury informed of the defendant’s parole ineligibility. Simmons, 512 U.S. at 156–78; see also Bush, 423 P.3d at 386–88, ¶¶ 69–75. Thus, Simmons expressly flows from the opportunity to have a jury informed of his parole ineligibility. See Simmons, 512 U.S. at 161 (Blackmun, J., joined by Stevens, Suter, and Ginsburg, JJ.) (citing Gardner, 430 U.S. at 362); id. at 175 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in judgment) (citing Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986), and quoting Gardner, 340 U.S. at 362). As the Fourth Circuit held in Townes v. Murray, the right under Simmons “is one of opportunity, not of result.” 68 F.3d 840, 850 (4th Cir. 1995); accord Morris v. Thornell, No. 17-00926- PHX-DGC (D. Ariz. June 28, 2023); see also Bush, 423 P.3d at 388, ¶ 74 (quoting Townes, 68 F.3d at 850). But see State v. Laney, 627 S.E.2d 726, 730 (S.C. 2006) (holding that when the requirements of Simmons are satisfied, “the trial judge shall charge the jury, whether requested or not, that life imprisonment means until the death of the defendant without the possibility of parole”). At Bearup’s trial, the court incorrectly instructed jurors that he was eligible for parole, when he was not. It did not, however, deny Bearup the opportunity to have the jury informed of his parole ineligibility through a curative instruction, as Bearup did not request one. Nor did he ask to inform the jury himself of such ineligibility. To the extent Bearup claims that the court denied him due process, it did not deny him due process under Simmons. Bearup further asserts that the Court should reconsider and reverse its finding that his Simmons/Lynch II claim lacks merit, by implying that Cruz II and Burns are intervening changes in controlling law, noting that four of the petitioners in Burns who had raised Simmons claims never sought a parole ineligibility instruction in the manner described in Bush. (See Doc. 151 at 6, 9–10; Doc. 155 at 2–4.) But the narrow issue raised in Burns was “the same question presented” in Cruz II—“[w]hether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief [that was] an adequate and independent state-law ground for the judgment.” See Burns, Joint Petition for Writ of Certiorari, No. 21-847 (U.S. Oct. 4, 2021). Neither Cruz II, nor Burns, held that a capital defendant’s failure to invoke Simmons at trial was denied due process, where the trial court did not sua sponte give a Simmons instruction, and had inaccurately informed the jury that the defendant might be eligible for parole or release if not sentenced to death. See e.g., United States v. Castillo, 69 F.4th 648, 657 (9th Cir. 2023) (“Surely, issues which are ‘neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents,’” quoting United States v. Kirilyuk, 29 4th 1128, 1134 (9th Cir. 2022)); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985) (“[U]nstated assumptions on non-litigated issues are not precedential holdings binding future decisions.”). In a notice of supplemental authority, Bearup cites Bronshtein v. Horn, in which a Pennsylvania district court granted habeas relief based on Simmons even though “the petitioner did not object at trial to the trial court’s failure to instruct the jury that life means life without parole.” (Doc. 156, quoting No. CIV. A. 99-2186, 2001 WL 767593, at *18– 21 and n.23 (E.D. Pa. July 5, 2001), affirmed in part, reversed in part, and remanded, 404 F.3d 700, 719 (3d Cir. 2005) (affirming Simmons relief)). But in Bronshtein, the court determined that there was no procedural default sufficient to prevent it from considering Bronshtein’s claims on the merits, i.e., that no adequate clearly established state bar applied as of the time of waiver. The court further found that in denying relief, the state court had not reached the merits of his claims, id. at *11, and granted relief on Bronshtien’s Simmons claim, id. at *18–19. The court did not consider Bronshtein’s apparent failure to object at trial to the trial court’s failure to give a Simmons instruction because the Pennsylvania supreme court had not relied on Bronshtien’s failure to object at trial in finding his claims procedurally defaulted. See id. n.19, 23. And to the extent the habeas court considered the defendant’s failure to object at trial, this Court agrees with the Bush and Townes courts’ reading of Simmons, i.e., it is the denial of a request for a Simmons instruction or denial of a motion to argue parole ineligibility at trial, that denies due process, not the trial court’s failure to sua sponte give a Simmons instruction.4 In sum, the Court finds that Bearup’s Simmons/Lynch II claim lacks potential merit and thus does not warrant a Rhines stay. Cruz II renders Bearup’s Simmons/Lynch II claim unexhausted and his petition mixed. Nevertheless, that claim lacks potential merit, as it is plainly meritless for the reasons stated above and in the 2020 Order. Thus, the Court will deny reconsideration of that finding in the 2020 Order, and the Court will deny Claim 44. See 28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on the merits); see also Lambrix v. Singletary, 520 U.S. 518, 524–25 (1997) (explaining that the court may bypass the procedural default issue in the interest of judicial economy when the merits are clear but the procedural default issues are not); Peavy v. Madden, No.: 19cv0743-MMA (BGS), 2020 WL 4747722, at *14 (S.D. Cal. Aug. 17, 2020) (A claim is plainly meritless where ‘it is perfectly clear that the petitioner has no hope of prevailing.’ That same standard applies to whether this Court can deny an unexhausted claim on the merits.”); see, e.g., Payne v. Thornell, No. CV-20-0459-TUC-JAS (D. Ariz. June 28, 2023), Doc. 64. Bearup moves to authorize habeas counsel to represent him on successive state PCR under the Criminal Justice Act of 1964 (CJA), 18 U.S.C. § 3599(a)(2). (Doc. 152.) The CJA “provides for the appointment of [federal] counsel for . . . indigent[ ]” defendants in federal habeas cases, Harbison v. Bell, 556 U.S. 180, 184–85 (2009) (citing 18 U.S.C. § 3599(a)(2)), and requires counsel to represent them: throughout every subsequent stage of available judicial proceedings, including . . . all available post-conviction process, together with application for stays of execution and other appropriate motions and procedures and . . . 4 Bearup also argues in Claim 45 that his trial counsel rendered ineffective assistance by not having the jury informed of his parole ineligibility. (Doc. 39 at 384–86.) Bearup states he will not raise Claim 45 in state court unless this Court grants a Rhines stay on his Simmons/Lynch II claim. (Doc. 155 at 9.) Therefore, the Court does not assess whether Claim 45 merits a Rhines stay. in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. 18 U.S.C. § 3599(e). State postconviction review is not a stage “subsequent” to a federal habeas case. See Harbison, 556 U.S. at 189 (citing 28 U.S.C. § 2254(b)(1)) (explaining that “[p]etitioners must exhaust their claims in state court before seeking” the writ). Thus, “a state prisoner” lacks the “statutory right” to “federally paid counsel” in seeking state postconviction relief. Lugo v. Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014) (citing Harbison, 556 U.S. at 189); see also, e.g., Hitcho v. Wetzel, No. 16-1156, 2016 WL 8717228, at *3 (E.D. Pa. Oct. 14, 2016) (acknowledging Lugo). Yet this Court may decide “on a case-by-case basis that it is appropriate” for counsel—“in the course of [their] federal habeas representation”—to exhaust claims in state court. Harbison, 556 U.S. at 190 n.7 (based on § 3599(e)’s provision that counsel may represent the prisoner “in ‘other appropriate motions and procedures’”); see also, e.g., Gallegos v. Ryan, No. CV-01-01909-PHX-NVW, 2017 WL 3822070, at *5 (D. Ariz. July 2017) (stating, based on Harbison, 556 U.S. at 190 n.7, that “this Court has the discretion to appoint federal counsel to represent [federal habeas petitioner] in state court”). In denying Bearup a Rhines stay, such authorization is inappropriate. See, e.g., Gallegos, 2017 WL 3822070, at *2–5 (denying such authorization by denying a Rhines stay to exhaust a “time-barred” claim under 28 U.S.C. § 2244(d)(1) as futile); see also Hardy v. Shinn, No. CV-18-02494-PHX-JJT, 2021 WL 4060555, at *7 and n.3 (D. Ariz. Sept. 7, 2021) (denying authorization for capital habeas counsel to exhaust federal habeas claims in state court after denial of a Rhines stay where good cause not shown and where there were “indications” of “dilatory litigation tactics”); Johnson v. Ryan, No. CV-18- 00889, 2019 WL 1227179, at *2 (D. Ariz. Mar. 15, 2019) (denying such authorization as “inappropriate and unnecessary” because petitioner was not “entitled to a Rhines stay,” “together with the Harbison Court’s discussion of [§ 3599(e)’s] parameters”). /// /// 1 Accordingly, IT IS ORDERED denying Claim 44 to the extent that it asserts a violation of Simmons and Lynch II. IT IS FURTHER ORDERED granting Bearup’s Motion for Reconsideration as to the finding that Lynch I was not a significant change in the law, denying the Motion as to the finding that Bearup’s Simmons/Lynch IT claims lacks merit, and denying the 7\|| Motion’s request for a Rhines stay (Doc. 151). IT IS FURTHER ORDERED denying Bearup’s Motion for Authorization to Represent Petitioner in State Court (Doc. 152). Dated this 29th day of August, 2023.