Bearup v. Shinn

• Court: District Court, D. Arizona
• Decided: October 1, 2024
• 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 Ryan Thornell, et al.,

13 Respondents. 14 15 Petitioner Patrick Wade Bearup has moved for a stay and abeyance of this case 16 under Rhines v. Weber, 544 U.S. 269 (2005), so that he can exhaust one of his habeas 17 claims in state court. (Doc. 160 at 1–12.) He also asks the Court to authorize his habeas 18 counsel to represent him in state court. (Id. at 1, 12–14.) Respondents oppose a stay and 19 abeyance and take no position on the authorization request. (Doc. 161.) For the reasons 20 below, the Court will grant Bearup’s motion and will stay and hold this case in abeyance. 21 The Court will also authorize habeas counsel to represent Bearup in state court. 22 I. BACKGROUND 23 The relevant facts began in 1993, when the Arizona Legislature eliminated parole 24 for felonies committed post-1993. A.R.S. § 41-1604.09(I) (1993). In the late 1990s, Bearup 25 spent four years in prison for aggravated assault. (Doc. 46-2 at 191.) He was released in 26 2001 but was later charged as an accomplice in a 2002 kidnapping and murder.1 (See 27 1 In Arizona, an accomplice can be “criminally accountable” for another’s conduct. A.R.S. 28 § 13-303. 1 R.O.A. 1.) The State sought a death sentence for the murder, alleging two statutory 2 aggravating circumstances: Bearup had been convicted of the “serious offense” of 3 aggravated assault, see A.R.S. § 13-703(F)(2) (2002), and he committed the murder in an 4 “especially heinous, cruel or depraved” way, id. at (6).2 (R.O.A. 17.) 5 Prospective jurors in Bearup’s murder case were required to complete a 6 questionnaire created by the parties’ counsel and approved by the court. (R.O.A. 210.) The 7 questionnaire informed the prospective jurors about sentencing but incorrectly stated that 8 if Bearup was convicted of the murder, but not sentenced to death, the court would sentence 9 him to life in prison either with, or without, the possibility of “parole”, despite the 1993 10 elimination of parole under A.R.S. § 41-1604.09(I). 11 After the parties’ counsel reviewed the completed questionnaires, they conducted 12 individual voir dire. The court and the prosecutor incorrectly told two prospective jurors, 13 who later served on the jury, that if Bearup was convicted of murder but not sentenced to 14 death, the court would sentence him to life in prison either with, or without, the possibility 15 of “parole.” (R.T. 11/6/06; R.T. 11/7/06 at 3–4, 131; R.T. 11/8/06; R.T. 11/14/06 at 13.) 16 At no point during jury selection or trial did Bearup’s counsel seek a curative instruction, 17 informing the jury that Bearup was ineligible for “parole,” and that if not sentenced to 18 death, he could only be sentenced to life in prison without the possibility of “parole.”3 At 19 the guilt phase, the jury found Bearup guilty as charged. State v. Bearup, 211 P.3d 684, 20 688 (Ariz 2009). 21 Bearup represented himself at the aggravation phase (R.T. 1/29/07 at 7–9), where 22 the jury found both alleged aggravating circumstances, Bearup, 211 P.3d at 688. Bearup 23

24 2 In Arizona, a defendant is ineligible for a death sentence unless he is convicted of a capital 25 offense and at least one statutory aggravating circumstance is found. State ex rel. Thomas v. Granville, 123 P.3d 662, 666 (Ariz. 2005). If a jury finds at least one statutory 26 aggravating circumstance, it must impose a death sentence if it finds “no mitigating 27 circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-703(E) (2007). 3 As discussed below, Bearup was only eligible for “release” (commutation or a pardon), 28 but not “parole.” See Chaparro v. Shinn, 459 P.3d 50, 54 ¶ 17 (Ariz. 2020). 1 also represented himself at the penalty phase and did not present mitigating evidence or 2 inform the jury that he was ineligible for parole if not sentenced to death. (R.T. 1/29/07 at 3 9; R.T. 1/31/07 at 6–7; R.T. 2/1/07 at 6, 11–13.) Bearup allocuted to the jury that he did 4 not actually kill the victim but that he would accept the jury’s sentencing verdict.4 (R.T. 5 2/1/07 at 11–13.) The court instructed the jury that in deciding whether to sentence Bearup 6 to death, it could consider evidence from all three phases of trial, and that if it did not 7 sentence Bearup to death, the court would sentence him to life in prison either with, or 8 without, the possibility of “release,” without explaining how “release” differed from 9 “parole.” (Id. at 9–10, 17.) 10 In closing at the penalty phase, the prosecutor argued that the jury should “focus” 11 on Bearup’s “major,” “substantial,” and “shockingly evil” role in the murder, as well as his 12 prior conviction for aggravated assault, which the prosecutor described as a “very serious 13 and violent offense.” (Id. at 21–23.) The prosecutor also argued that Bearup was not 14 “genuine[ly]” remorseful and had “chose[n] a path of violence,” resulting in the “brutal 15 heinous murder,” within eight months of his release from prison. (Id. at 22–23.) Bearup, in 16 closing, told the jury that he was not requesting “leniency” but instead was asking it to 17 follow the law. (Id. at 24.) The jury deliberated for seven hours over three days (id. at 26; 18 R.T. 2/5/07 at 3; Doc. 160 at 9), before it returned a death sentence, Bearup, 211 P.3d at 19 688.5 20 On direct appeal, the Arizona Supreme Court “independently review[ed]” the 21 imposition of the death sentence. Id. at 693–96. Bearup alleged three mitigating 22 circumstances on appeal: waiving the right to present mitigating evidence at the penalty 23 phase, his “comparatively minor participation” in the murder, and the “disparity” between 24 his death sentence and prison sentences for his co-defendants. Id. at 692–95. In addition, 25 the supreme court also searched the record for other mitigation, id. at 696, without noting 26 27 4 In Arizona, aside from their closing arguments, a capital defendant has a right to give a “mitigating statement” at sentencing. State v. McCall, 770 P.2d 1165, 1170 (Ariz. 1989). 28 5 Respondents do not dispute the duration or course of jury deliberations. 1 that jurors had been incorrectly told that Bearup was eligible for “parole” if not sentenced 2 to death. The supreme court affirmed the convictions and sentences, holding that the 3 “limited mitigation” was insufficient to call for leniency, in light of the two “serious” 4 aggravating circumstances. Id. 5 In May 2010, Bearup’s postconviction-relief (PCR) case commenced, and in 6 February 2014, Bearup’s PCR counsel filed an amended PCR petition, raising claims of 7 ineffective assistance of trial counsel (IAC) but did not include the substance of habeas 8 Claim 45: trial counsel’s failure to ensure the questionnaire accurately reflected that if not 9 sentenced to death, Bearup was ineligible for parole, and the failure to seek a curative 10 instruction regarding that incorrect information.6 (Doc. 46-2 at 11–57, 71–87; CR-07-0048- 11 AP “Docket.pdf” at 4.) In March 2015, the trial court dismissed the petition. (Doc. 46-3 at 12 262 (Ex. YYYYYY).) 13 On April 30, 2015, Bearup moved for rehearing and to amend the petition with new 14 supportive evidence regarding a claim in the dismissed petition. The court denied the 15 motions because it had already dismissed the petition, and the new evidence did not alter 16 its conclusions. (Id. at 310–74 (Exs. HHHHHHH–JJJJJJJ).) In June 2015, Bearup filed a 17 petition for review (PFR) in the Arizona Supreme Court; it denied the PFR in September 18 2016. (CR-15-0225-PC “Docket.pdf”.) 19 Shortly thereafter, Bearup commenced this habeas case, and the Court appointed the 20 Arizona Federal Public Defender’s Office (FPD) to represent him in federal court but 21 barred the FPD from representing him in state court, absent “express authorization.” (Doc. 22 1; Doc. 6 at 1.) In Claim 45 of his amended habeas petition, Bearup raised an IAC claim 23 based on trial counsel’s failure to challenge jurors being incorrectly told that Bearup was 24 eligible for parole if not sentenced to death. (Doc. 39 at 384–86.) He conceded that this 25 claim was not raised in state court but was not procedurally defaulted and, alternatively, 26 that the ineffective assistance of PCR counsel established cause and prejudice to excuse 27 6 In Arizona, IAC claims, if any, must be raised in a PCR case, not on direct appeal. State 28 v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002). 1 the default. (Id. at 384.) 2 In early July 2024, Bearup filed a notice concerning the Arizona Supreme Court’s 3 decision in State v. Anderson, 547 P.3d 345 (Ariz. 2024),7 and his intention, based on 4 Anderson, to file a motion for stay and abeyance under Rhines, 544 U.S. 269, while he 5 raises Claim 45 in state court. (Doc. 159.) Bearup subsequently filed his Rhines motion, 6 which is fully briefed. (Docs. 160–62.) 7 II. APPLICABLE LAW 8 A. Rhines Stay 9 A “mixed” habeas petition—that is, one comprised of claims exhausted and 10 unexhausted in state court—cannot be “adjudicate[d]” in federal district court. Rhines, 544 11 U.S. at 273. Under Rhines, the court may stay a habeas case with a “mixed” petition while 12 the petitioner exhausts his unexhausted claims in state court, before returning to the court 13 for review of the fully exhausted petition. Id. at 271–79. A Rhines stay is proper only if the 14 petitioner shows (1) “good cause” for the failure to previously exhaust, (2) the unexhausted 15 claim is “potentially meritorious,” and (3) the petitioner did not “intentionally” use 16 “dilatory litigation tactics.” Id. at 277–78. 17 B. Exhaustion 18 A Rhines stay should only be granted if a habeas petition contains an unexhausted 19 claim for which there is an available remedy in state court. See Rhines, 554 U.S. at 271– 20 79; see also, e.g., White v. Ryan, No. CV-09- 2167-PHX-FJM (LOA), 2010 WL 1416054, 21 at *12 (D. Ariz. Mar. 16, 2010). A claim is unexhausted if it can be raised in state court 22 “by any available procedure.” 28 U.S.C. § 2254(c). Conversely, a claim is exhausted if (1) 23 it has been fairly presented to the highest state court with jurisdiction to consider it or (2) 24 no state remedy remains available to exhaust the claim. Johnson v. Zenon, 88 F.3d 828, 25 829 (9th Cir. 1996). A state remedy is unavailable if the state’s procedural rules bar the 26 state court from considering the claim, making the claim “technically exhausted.” See 27 Woodford v. Ngo, 548 U.S. 81, 92–93 (2006); Coleman v. Thompson, 501 U.S. 722, 732

28 7 Anderson is described below. 1 (1991). A technically exhausted claim need not be raised in state court. Engle v. Isaac, 456 2 U.S. 107, 125 n.28 (1982). 3 For a claim to be found unexhausted, the district court must find that there is an 4 available remedy in state court. Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998), 5 overruled on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). A district court may 6 find a state remedy available if there is a “reasonable probability” of state relief. Matias v. 7 Oshiro, 683 F.2d 318, 320 (9th Cir. 1982). A reasonable probability exists when it is “not 8 clear” the claim will be procedurally barred. Cassett v. Stewart, 406 F.3d 614, 616 (9th Cir. 9 2005). 10 C. Arizona’s Bar on Successive IAC Claims 11 Rule 32 of the Arizona Rules of Criminal Procedure governs PCR cases for those 12 convicted and sentenced at trial. Ariz. R. Crim. P. 32.1. Relief is available for IAC claims 13 under Rule 32.1(a).8 Id. at (a) and cmt.; State v. Goldin, 365 P.3d 364, 368, ¶ 14 (Ariz. Ct. 14 App. 2015). When no IAC claim is raised in the first PCR case, Rule 32.2(a)(3) precludes 15 all successive IAC claims unless they assert the violation of a “constitutional right that [can 16 only] be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. 17 P. 32.2(a)(3). When an IAC claim was raised in the first PCR case, a successive IAC claim 18 is precluded, even if the claim asserts the violation of a constitutional right that can only 19 be waived knowingly, voluntarily, and personally by the defendant. State v. Traverso, 537 20 P.3d 345, 347–49, ¶¶ 9–13 (Ariz. Ct. App. 2023). 21 A non-capital defendant must file a notice of a Rule 32.1(a) PCR claim within 90 22 days after the oral pronouncement of sentence, Ariz. R. Crim. P. 32.4(b)(3)(A), but in a 23 capital case, the Arizona Supreme Court files such notice with its mandate affirming the 24 death sentence, id. at (C). For an untimely PCR case with a Rule 32.1 claim, a defendant 25 must “adequately explain[]” why the untimely filing is not the “defendant’s fault.” Id. at 26 32.4(b)(3)(D). 27 8 Rule 32.1(a) provides for relief on the basis that the defendant’s conviction was obtained, 28 or the sentence imposed, in violation of the state or federal constitutions. 1 D. State v. Anderson 2 Bearup argues that he has an available state remedy under State v. Anderson, and 3 that a successive PCR raising Claim 45 is not procedurally defaulted or untimely. 4 Respondents disagree. 5 On May 2, 2024, after Bearup commenced his habeas case in this Court, the Arizona 6 Supreme Court issued its decision in Anderson, 547 P.3d 345 (Ariz. 2024). Anderson 7 involved the following facts. Anderson was convicted by a jury of conspiracy to commit 8 first-degree murder and sentenced to prison for “life without the possibility of release on 9 any basis until the service of twenty-five years.” Anderson, 547 P.3d at 348 (emphasis 10 added). Before trial, Anderson rejected an alleged plea deal that would have resulted in a 11 sentence of 18 to 22 years, after trial counsel advised him that if convicted at trial, he would 12 be eligible for parole after 25 years. In the early 2000s, Anderson twice petitioned for PCR 13 alleging IAC claims; both PCR cases were dismissed with prejudice. Id. 14 In 2022, as Anderson “attempted to enroll in an educational program” through the 15 Arizona corrections department, he first learned, that contrary to trial counsel’s advice, he 16 was not eligible for parole at all. Id. Anderson then filed a third PCR asserting a new IAC 17 claim based on trial counsel’s incorrectly telling Anderson that he was eligible for parole. 18 Id. The PCR court found the claim was not precluded under Rule 32.2(a)(3),9 despite not 19 being raised in Anderson’s prior PCR cases but denied relief on the merits. Id. The Arizona 20 Court of Appeals found the claim was precluded under Rule 32.2(a)(3) because it had not 21 been raised in Anderson’s previous PCR cases. Id. (citation omitted). 22 The Arizona Supreme Court reversed the Arizona Court of Appeals, finding the 23 claim neither untimely nor precluded. Id. at 353–54. In finding the claim not untimely, the 24 court applied Rule 32.4(b)(3)(A) (West 2020), which requires a notice of a Rule 32.1(a) 25 PCR claims to be filed within 90 days after the oral pronouncement of a sentence unless 26

27 9 Rule 32.2(a)(3) precludes postconviction relief on certain claims that could have been— but were not—raised at trial, on direct appeal, or on initial PCR. Ariz. R. Crim. P. 28 32.2(a)(3); State v. Martinez, 250 P.3d 241, 243, ¶ 8 (Ariz. Ct. App. 2011). 1 “‘the defendant adequately explains why the failure to timely file a notice was not the 2 defendant’s fault’” under Rule 32.4(b)(3)(D) (West 2020). Anderson, 547 P.3d at 349–50 3 (quoting Ariz. R. Crim. P. 32.4(b)(3)(D)). The Arizona Supreme Court cited the “pervasive 4 confusion” among “both the bench and bar” regarding the availability of “parole,” rather 5 than “release” when Anderson was sentenced. Id. at 348. It found that Anderson had 6 adequately explained that the untimeliness of his third PCR was not his fault where, before 7 trial, Anderson’s counsel did not tell him that parole had been abolished and “instead 8 incorrectly advised him that, if found guilty, he would be eligible for parole after [25] 9 years.” Id. at 350. It also found that “[h]is delay was not, as the court of appeals reasoned, 10 the result of a ‘mere failure to recognize a valid claim might exist.’” Id. (quoting Anderson, 11 2022 WL 17494588, at *1). The court reasoned, “Appellate courts, including [the Arizona 12 Supreme Court], published decisions as late as 2013 indicating parole was still available 13 for those convicted of felonies with the possibility of release after [25] years.” Id. (citing 14 cases). 15 In finding the claim not precluded, the court reasoned that, like in State v. Diaz, 340 16 P.3d 1069 (Ariz. 2014),10 Anderson posed “unusual, albeit different circumstances,” such 17 that the successive PCR was not precluded. Id. at 351. It described that in 1993, the Arizona 18 Legislature abolished “parole,” but due to confusion about the abolition when Anderson 19 filed his first two PCR cases, “defendants, attorneys, and courts did not know of or 20 recognize” that telling a defendant that he was eligible for “parole,” rather than “release,” 21 e.g., executive clemency or commutation, was incorrect. Id. (citing Chaparro v. Shinn, 459 22 10 In Diaz, the Arizona Supreme Court found that petitioner’s third PCR case was not 23 precluded because two different attorneys had failed to file a PCR petition after petitioner 24 had timely filed PCR notices in his first two PCR cases, resulting in the dismissal of the PCR cases. 340 P.3d at 1069; see also id. at 1070–71. Because counsel had never filed a 25 petition, petitioner had never previously raised his IAC claims through no fault of his own. See id. at 1069–71. After petitioner noticed a third PCR, a third attorney timely filed a 26 petition alleging claims for the first time, including that trial counsel rendered ineffective 27 assistance regarding proffered plea agreements. Id. at 1070. The Arizona Supreme Court found the IAC claim raised in the third PCR was not precluded under the unusual 28 circumstances of that case. Id. at 1069. 1 P.3d 50, 54 (Ariz. 2020), holding that “parole” was not synonymous with other forms of 2 “release”). The Arizona Supreme Court explained that trial counsel’s erroneous advice was 3 not just a problem of “individual IAC” but also a “systemic failure to recognize” parole’s 4 abolition. Id. Citing this unique circumstance, the court found that Anderson could not have 5 reasonably raised his IAC claim until his 2022 PCR notice. Id. That is, it found that the 6 claim was not cognizable as a known claim when Anderson filed his prior PCR petitions. 7 Id. For that reason, it found the claim un-precluded under Rule 32.2(a)(3). Id. at 353. 8 III. DISCUSSION 9 A. Is Claim 45 Exhausted? 10 Because a Rhines stay may only be granted in a habeas case containing exhausted 11 and unexhausted claims, the Court first considers whether Claim 45 is exhausted—that is, 12 whether there is clearly no available remedy for relief in state court. See King v. Ryan, 564 13 F.3d 1133, 1140 (9th Cir. 2009); Cassett, 406 F.3d at 616. Bearup argues that he has an 14 available state court remedy in light of Anderson. (See Doc. 160 at 2–5; Doc. 161 at 5–6.) 15 Anderson is an “intervening change in the law” as to when a successive IAC claim— 16 concerning a misstatement that a defendant will be eligible for “parole” if not sentenced to 17 death—is procedurally barred as precluded or untimely under Rule 32. See Morris v. 18 Thornell, No. CV-17-00926-PHX-DGC, 2024 WL 3091200, at *2 (D. Ariz. June 20, 19 2024). Respondents argue that Claim 45 is procedurally barred despite Anderson. The 20 Court assesses whether either bar clearly applies to Claim 45 in light of Anderson. See 21 King, 564 F.3d at 1140; Cassett, 406 F.3d at 616. If so, Bearup lacks an available state 22 remedy for Claim 45 and his motion must be denied. 23 1. Preclusion 24 In Anderson, the Arizona Supreme Court found a successive IAC claim, asserting 25 trial counsel erroneously advised his client that he was eligible for parole, was not 26 precluded. Anderson, 547 P.3d at 350–53, ¶¶ 20–26, 36. Stressing fairness, it refused to 27 preclude the claim because the pervasive confusion about the availability of parole 28 rendered the claim not cognizable as a known claim throughout Anderson’s 2002 and 2003 1 PCR cases. Id. at 348, 350–53, ¶¶ 5–6, 20–26. Without determining when the pervasive 2 confusion in the legal community ended, it noted that such confusion continued in state 3 appellate courts as late as 2013 and concluded that Anderson—who no longer had PCR 4 counsel—could not have “reasonably raised” the IAC claim until he himself discovered 5 that trial counsel had incorrectly advised him, and he raised the claim in 2022. Id. at 348, 6 350–53, ¶¶ 5–6, 20–26, 36. 7 Bearup’s PCR case continued until September 2016 (CR-15-0225-PC 8 “Docket.pdf”). The Court first considers when the pervasive confusion in Arizona’s legal 9 community about the unavailability of parole ended and whether Claim 45 was cognizable 10 while his PCR case, specifically his PFR, was pending in the Arizona Supreme Court. See 11 Morris, 2024 WL 3091200. 12 In Morris, another division of this Court found that the pervasive confusion ended 13 either in September 2015, when the Arizona Supreme Court clarified that parole was 14 available only to certain juveniles and those who committed a felony pre-1994, State v. 15 Lynch (Lynch I), 357 P.3d 119, 138 (Ariz. 2015), or in May 2016, when the United States 16 Supreme Court held that the possibility of “release,” such as commutation or pardon, rather 17 than “parole,” did not justify the trial court’s refusal to instruct the jury that the defendant 18 was ineligible for parole, Lynch v. Arizona (Lynch II), 578 U.S. 613 (2016) (per curiam). 19 2024 WL 3091200, at *3–4.11 Lynch I and II were issued after the trial court dismissed 20 Bearup’s amended PCR petition and denied his motions to amend and for rehearing, and 21 after Bearup filed his PFR, but before the Arizona Supreme Court ruled on the PFR. Thus, 22 unlike the claim in Anderson, Claim 45 became cognizable as a known claim before 23 Bearup’s PCR case effectively ended and while Bearup had PCR counsel. (Doc. 46-2, Ex. 24 RRRRR; CR-15-0225-PC “Docket.pdf”.) 25 The Court must therefore determine whether Bearup’s counsel clearly could have 26 reasonably raised Claim 45, after the claim became cognizable as a known claim, no later 27 than May 2016 following Lynch II, and before Bearup’s PFR was denied in September

28 11 This Court agrees with the reasoning in Morris. 1 2016. See Cassett, 406 F.3d at 616; Anderson, 547 P.3d at 350–53, ¶¶ 20–26, 36. The claim 2 could have been reasonably raised if Bearup clearly had an available avenue for state relief 3 before his PFR was denied in September 2016. See Woodford, 548 U.S. at 92–93; Engle, 4 456 U.S. at 125 n.28; Cassett, 406 F.3d at 616; Johnson, 88 F.3d at 829. If there was clearly 5 an available avenue, then Claim 45 will be precluded as a successive IAC claim under Rule 6 32.2(a)(3). See State v. Martinez, 250 P.3d 241, 243, ¶ 8 (Ariz. Ct. App. 2011). 7 On the record before this Court, it is not clear that Bearup had an available avenue 8 for state relief before his PCR case became final on the denial of his PFR and while he was 9 represented by counsel. Bearup’s amended PCR petition did not include Claim 45. In 10 March 2015, the trial court dismissed Bearup’s PCR case, and on April 30, 2015, it denied 11 his motions to amend and for rehearing, prior to Claim 45 becoming a “known claim.” 12 Bearup filed his PFR in June 2015, also before Claim 45 became a “known claim.” No 13 earlier than September 2015, when Lynch I was decided and no later than May 2016, when 14 Lynch II was decided, did Claim 45 become a “known claim.” Moreover, it is unlikely that 15 Bearup would have been able to amend his PFR with Claim 45 because a PFR must contain 16 only issues previously decided. See Ariz. R. Crim. P. 32.16(c)(2)(B); see also, e.g., State 17 v. Rowley, No. 2 CA-CR 2023-0139-PR, 2023 WL 4677721, at *1, ¶ 4 (Ariz. Ct. App. July 18 21, 2023). 19 Rule of 32.9(d) of the Arizona Rules of Criminal Procedure permits amendments to 20 a PCR petition for “good cause,” and there is a “liberal policy toward” amendments. 21 Canion v. Cole, 115 P.3d 1261, 1264, ¶ 16 (Ariz. 2005). But Arizona courts have 22 inconsistently allowed amendment after a trial court’s denial of PCR, much less while a 23 PFR is pending before the Arizona Supreme Court. Loya v. Shinn, No. CV-19-02104-PHX- 24 SRB, 2020 WL 5658976, at *6 n.9 (D. Ariz. Sept. 23, 2020). And the PCR court had 25 already denied amendment before Claim 45 became cognizable as a known claim because 26 the petition had been dismissed. (Doc. 46-3, Ex. JJJJJJJ.) Presumably, Bearup would have 27 had to seek a stay in the Arizona Supreme Court and leave to return to the trial court to 28 seek leave to amend to add Claim 45. It is doubtful that the Arizona Supreme Court or the 1 trial court would have granted either request. Under these circumstances, the Court finds 2 that Bearup did not clearly have an available avenue for state relief on Claim 45 between 3 when Claim 45 became cognizable as a known claim and the denial of Bearup’s PFR. 4 Nor is it clear that Bearup had an available avenue to raise Claim 45 between the 5 denial of his PFR and the issuance of Anderson. During most of this time, this habeas case 6 was pending. Had Bearup’s habeas counsel tried to raise Claim 45 in state court before 7 Anderson issued, Claim 45 clearly would have been found precluded as a successive PCR, 8 not unlike the Arizona Court of Appeals finding Anderson’s claim precluded.12 See 9 Martinez, 250 P.3d at 243, ¶ 8. For similar reasons, it is at best speculative whether Bearup 10 would have succeeded on appeal. Thus, the Court concludes that Bearup did not clearly 11 have an available avenue for state relief on Claim 45 between when Claim 45 became 12 cognizable as a known claim and issuance of Anderson. 13 The Court further concludes that there is a reasonable probability of state relief on 14 Claim 45 under Anderson. The IAC claim in Anderson and Claim 45 center on IAC errors 15 concerning whether a defendant was eligible for parole when tried. Based on the pervasive 16 confusion described above regarding the availability of parole, neither claim was 17 cognizable as a known claim when the initial PCR petitions were filed. Although Claim 45 18 became cognizable as a known claim before Bearup’s PFR was denied and while Bearup 19 had counsel, as discussed above, it is not clear that Bearup could have reasonably raised 20 Claim 45 after it became cognizable, because Bearup did not clearly have an available 21 avenue for state relief. The Court finds there is a reasonable probability that Claim 45 is 22 not precluded under Anderson and under the principle of fairness on which Anderson rests. 23 Respondents argue that Claim 45 is clearly precluded. (Doc. 39 at 384.) They argue 24 that by asserting that PCR counsel rendered ineffective assistance by not raising Claim 45 25 in the first PCR case, Bearup concedes that Claim 45 was cognizable as a known claim 26 when the amended PCR petition was filed. (Id.) First, Claim 45 was not cognizable as a 27 12 Indeed, this Court would have been unlikely to authorize habeas counsel to do so prior 28 to Anderson. 1 known claim prior to the dismissal of the amended PCR petition, or even the filing of the 2 PFR. Moreover, counsel may render ineffective assistance “even when the legal 3 community has uniformly made the same error.” State v. Miller, 485 P.3d 554, 558, ¶ 14 4 (Ariz. 2021) (citing Padilla v. Kentucky, 559 U.S. 356, 367 (2010)). And Bearup’s PCR 5 counsel filed the amended PCR petition a year before the pervasive confusion about 6 availability of parole ended in the Arizona legal community under Lynch I. For these 7 reasons, PCR counsel’s failure to raise Claim 45 further supports that Claim 45 was not 8 cognizable at relevant times and is unexhausted. 9 2. Timeliness 10 In Anderson, the Arizona Supreme Court found the successive IAC claim timely for 11 the same reasons it found the claim not precluded. 547 P.3d at 349–50, 53, ¶¶ 15–19, 36. 12 Assuming Rule 32.4(b)(3)(A), or any other timeliness rule, applies to successive PCR 13 claims in a capital murder case,13 it is not clear that Bearup cannot reasonably explain why 14 he is not at fault for its untimeliness, analogous to why it is not precluded. Respondents, 15 moreover, do not contend that the time between Anderson’s issuance and the filing of 16 Bearup’s Rhines motion clearly render Claim 45 untimely. In sum, Claim 45 is unexhausted 17 because there is a reasonable probability that Bearup has an avenue for state relief under 18 Anderson. 19 B. Good Cause and No Intentional Dilatory Litigation Tactics 20 “Good cause” is not fully developed in the Rhines context. Dixon v. Baker, 847 F.3d 21 714, 720 (9th Cir. 2017). Nonetheless, the Court must determine whether good cause exists 22 consistent with Rhines, which only permits a stay in “limited circumstances,” and the 23 24 13 A non-capital defendant like Anderson had to file his PCR notice within 90 days after entry of judgment. Ariz. R. Crim. P. 32.4(a)(2)(D) (West 2020). At the time of Bearup’s 25 first PCR, the Supreme Court clerk “expeditiously” filed a PCR notice “upon issuance of the mandate affirming the defendant’s conviction and sentence on direct appeal.” Id. at 26 (b)(3)(C) (West 2010). If Rule 32.4(b)(3)(A)—or any other timeliness rule—applies to 27 successive PCR claims in a capital case, a capital defendant’s failure to raise an IAC claim in his first PCR care would be precluded unless he “adequately explains” why his failure 28 to do so was not his fault under Rule 32.4(b)(3)(D) (West 2020), in light of Anderson. 1 Antiterrorism Effective Death Penalty Act of 1996, which seeks to promote finality and 2 the proper exhaustion of claims. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) 3 (internal quotation marks omitted). “Good cause” does not demand “extraordinary 4 circumstances,” id. at 1023–24; it requires a “reasonable excuse, supported by sufficient 5 evidence,” to explain the failure to have previously exhausted the claim, Blake v. Baker, 6 745 F.3d 977, 982 (9th Cir. 2014). A bald statement does not suffice. Id. 7 For the same reasons the Court finds Claim 45 unexhausted under Rhines, good 8 cause exists for Bearup’s failure to have previously exhausted it. Respondents argue that 9 those reasons incorrectly rely on the futility doctrine in Sweet v. Cupp, 640 F.2d 233 (9th 10 Cir. 1981). (Doc. 161 at 6–7.) In Sweet, the Ninth Circuit excused the petitioner’s failure 11 to first exhaust in state court because it would have been futile. 640 F.2d at 236. The Sweet 12 court defined the futility doctrine as excusing exhaustion when a state’s highest court had 13 resolved an issue adversely to the petitioner, and there was no reason to believe the court 14 would reverse its stance. Id. The United States Supreme Court subsequently rejected the 15 Sweet doctrine. Engle, 456 U.S. at 130. The Supreme Court explained that if a defendant 16 believed that he “may find favor” on a constitutional claim in federal court but not in state 17 court, he must still first present the issue to the state court if he has an available avenue for 18 relief. Id. 19 Unlike Sweet, Bearup is not seeking to avoid state-court review of a habeas claim. 20 See Sweet, 640 F.2d at 236. Bearup seeks state-court review of Claim 45 in order to exhaust 21 it before the Court considers the petition. (Doc. 160.) Further, the Sweet doctrine applied 22 to claims not raised in state court because the state’s highest court had previously adversely 23 resolved the issue on the merits. See Sweet, 640 F.2d at 236–37; Engle, 456 U.S. at 130. 24 Respondents cite no case in which the Arizona Supreme Court has resolved the issue in 25 Claim 45 on the merits. On this record, the Court finds there is good cause and does not 26 27 28 1 find intentional dilatory litigation tactics.14 2 C. Potential Merit 3 The “potential merit” standard is not onerous. Rhines, 544 U.S. at 277. It does not 4 require “conclusive[ ]” proof that the claim has merit. Dixon, 847 F.3d at 723. A claim has 5 potential merit “unless ‘it is perfectly clear that the petitioner has no hope of prevailing,’” 6 id. at 722 (quoting Cassett, 406 F.3d at 624), that is, if it is “perfectly clear” that the claim 7 is not “colorable,” Cassett, 406 F.3d at 624. A claim without potential merit is “plainly 8 meritless.” See Rhines, 544 U.S. at 277. 9 Claim 45 has potential merit. The Sixth and Fourteenth Amendments entitle a 10 criminal defendant to the effective assistance of trial counsel. Reece v. State of Georgia, 11 350 U.S. 85, 90 (1955) (Fourteenth Amendment); Glasser v. United States, 315 U.S. 60, 12 76 (1942) (Sixth Amendment), superseded on other grounds by rule, as stated in Bourjaily 13 v. United States, 483 U.S. 171, 181 (1987). Because this right attaches at the start of 14 “adversary judicial proceedings,” it applies to jury selection and the guilt phase. See Kirby 15 v. Illinois, 406 U.S. 682, 688–89 (1972) (plurality). A criminal defendant bears the burden 16 to prove IAC by showing that counsel performed deficiently, and that the deficiency 17 prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–88, 691–92 (1984). 18 Claim 45’s deficient-performance prong has potential merit. (Doc. 39 at 384–85.) 19 In assessing counsel’s performance, a court must make “every effort . . . to eliminate the 20 distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 21 conduct, and to evaluate the conduct from counsel’s perspective at the time.” See 22 Strickland, 466 U.S. at 689. Counsel performs deficiently when their representation falls 23 “below an objective standard of reasonableness” in light of “prevailing professional 24 norms.” Id. at 687–88. Misstating the law to a jury and failing to seek a curative instruction 25 regarding such misstatement can be deficient performance. E.g., Lankford v. Arave, 468 26

27 14 Respondents do not assert that the time between Anderson and Bearup’s Rhines motion negates good cause or reflects that Bearup used dilatory litigation tactics. (Doc. 161 at 5 28 n.6.) 1 F.3d 578 (9th Cir. 2006) (misstating law); see also Wade v. Brockamp, 342 P.3d 142, 152 2 (Or. App. 2015) (failure to object to misstatement); cf. State v. Lizardi, No. 2 CA-CR 2016- 3 0381-PR, 2017 WL 491649, at *3, ¶ 12 (Ariz. Ct. App. Jan. 25, 2017) (denying, on the 4 case record, IAC claim alleging failure to object to misstatement). 5 Respondents do not contest, and the record supports, that counsel performed 6 deficiently. Bearup’s counsel, and the prosecutor, created a juror questionnaire that 7 incorrectly stated Bearup was eligible for parole if not sentenced to death. (R.O.A. 210 at 8 17.) Bearup’s counsel also failed to object when the trial court approved the questionnaire 9 or when the court and the prosecutor repeated the incorrect information to two prospective 10 jurors, who later served on the jury. (R.T. 11/6/06 at 3–4; R.T. 11/14/06 at 13.) Nor did 11 counsel seek to correct the instruction at any time while representing Bearup. These 12 circumstances are sufficient to support potential merit of the deficient performance prong. 13 Lankford, 468 F.3d 578; Wade, 342 P.3d at 152. 14 There is also potential merit to the prejudice prong of Claim 45. (Doc. 39 at 385– 15 86.) Deficient performance is not prejudicial unless there is “a reasonable probability that, 16 but for the deficiency,” the trial’s result would have been different. Williams v. Taylor, 529 17 U.S. 362, 394 (2000). The length of jury deliberations can support a finding of prejudice 18 by implying that the jury “careful[ly] consider[ed] . . . the sentencing options.” See State v. 19 Escalante-Orozco, 386 P.3d 798, 830, ¶ 126 (Ariz. 2017), abrogated on other grounds by 20 State v. Escalante, 425 P.3d 1078 (Ariz. 2018). 21 The absence of a curative instruction regarding the unavailability of parole has been 22 found “highly prejudicial.” See Carpenter v. Vaughn, 296 F.3d 138, 158 (3d Cir. 2002). 23 Whether an accused is eligible for parole is “crucial” to a jury’s decision whether to impose 24 a death sentence, especially when the accused’s future dangerousness is an issue. Simmons 25 v. South Carolina, 512 U.S. 154, 164 (1994). Past acts of violence can sharply imply future 26 dangerousness, Escalante-Orozco, 386 P.3d at 830, ¶ 124 (citing Kelly v. South Carolina, 27 534 U.S. 246, 253 (2002)), and parole ineligibility may be the strongest guarantee of an 28 accused’s “future nondangerousness to the public,” Simmons, 512 U.S. at 164 (emphasis 1 added). Hence, if the State rests its case for a death sentence “at least in part” on a 2 defendant’s future dangerousness, the alternative sentence of life imprisonment without 3 parole will “necessarily undercut” the State’s argument. Id. at 168–69. 4 The incorrect information that Bearup was eligible for parole if not sentenced to 5 death played a key role at Bearup’s sentencing. The issue of Bearup’s future dangerousness 6 arose before his trial and became the focal point of the penalty phase. The State argued 7 Bearup’s past violent acts as aggravating circumstances (R.O.A. 17) and rested its case for 8 seeking a death sentence on his future dangerousness (R.T. 2/1/07 at 21–23). Yet Bearup’s 9 counsel helped create the questionnaire, which incorrectly stated that Bearup would be 10 eligible for parole if not sentenced to death, and failed to try to correct that information. 11 This sufficiently supports the potential merit of the prejudice prong. See Simmons, 512 U.S. 12 at 164; Carpenter, 296 F.3d at 158. 13 Respondents argue that the prejudice argument lacks potential merit. (Doc. 161 at 14 9.) They assert that at the penalty phase, Bearup neither offered mitigating evidence nor 15 asked for leniency. (Id.) Bearup, however, allocated to the jury that he did not actually kill 16 the victim, and implied that his co-defendants received prison sentences. (R.T. 2/1/07 at 17 11–13.) Further, the trial court instructed the jurors to consider evidence from all three 18 phases of trial (id. at 9–10), the jury deliberated Bearup’s sentence for seven hours over 19 three days. (id. at 26; R.T. 2/5/07 at 3; Doc. 160 at 9), and the Arizona Supreme Court 20 found “limited” mitigating circumstances, without considering the incorrect information 21 provided to the jury regarding Bearup’s parole eligibility, Bearup, 211 P.3d at 695–96, 22 ¶¶ 62–63. In short, Claim 45 has potential merit notwithstanding Bearup’s waiver of the 23 right to present mitigating evidence. 24 Respondents also argue that the trial court cured any prejudice by instructing the 25 jury that Bearup would be eligible for “release” if the jury did not sentence him to death. 26 (Doc. 161 at 8–9.) But the jurors were never instructed about the difference between 27 “parole” and “release,” commutation or pardon. Moreover, the Arizona Supreme Court has 28 rejected the “release” argument raised by Respondents. See, e.g., Escalante-Orozco, 386 1 P.3d at 828 & 830. Respondents otherwise assert that the Arizona Supreme Court’s 2 independent review of Bearup’s death sentence cured any prejudice. (Doc. 161 at 10–13.) 3 The court, however, performed the independent review amidst the ongoing widespread 4 confusion about the availability of parole amongst Arizona appellate courts. See Anderson, 5 547 P.3d at 351, ¶ 25. Nor did the court address jurors being informed that Bearup would 6 be eligible for parole if not sentenced to death. This Court cannot say that Bearup could 7 not prevail on Claim 45 in state court. The Court will grant Bearup’s Rhines motion. 8 IV. AUTHORIZATION REQUEST 9 Bearup asks the Court to authorize his habeas counsel to represent him on successive 10 state PCR under the Criminal Justice Act of 1964 (CJA), 18 U.S.C. § 3599(a)(2). (Doc. 11 160 at 12–14.) The CJA allows the appointment of counsel for “indigent” defendants in 12 federal habeas cases, Harbison v. Bell, 556 U.S. 180, 184–85 (2009) (citing 18 U.S.C. 13 § 3599(a)(2)), and through “every subsequent stage of available judicial proceedings . . . .” 14 18 U.S.C. § 3599(e). State PCR is not a stage “subsequent” to a federal habeas case. See 15 Harbison, 556 U.S. at 189 (citing 28 U.S.C. § 2254(b)(1)). Because “[p]etitioners must 16 exhaust their claims in state court before seeking” habeas relief, id., a “state prisoner” lacks 17 the “statutory right” to “federally paid counsel” on state PCR, Lugo v. Sec’y, Florida Dep’t 18 of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014) (citing Harbison, 556 U.S. at 189); see also, 19 e.g., Hitcho v. Wetzel, No. 16-1156, 2016 WL 8717228, at *3 (E.D. Pa. Oct. 14, 2016) 20 (acknowledging Lugo). 21 Section 3599(e) nonetheless permits federal court to authorize habeas counsel to 22 represent a prisoner in “other appropriate motions and procedures,” 18 U.S.C. § 3599(e), 23 and a federal court may authorize habeas counsel “on a case-by-case basis,” to represent a 24 habeas petitioner to exhaust the petitioner’s claims in state court. Harbison, 556 U.S. at 25 190 n.7; see also, e.g., Gallegos v. Ryan, No. CV-01-01909-PHX-NVW, 2017 WL 26 3822070, at *5 (D. Ariz. July 2017) (stating that, based on Harbison, this “Court has the 27 discretion to appoint federal counsel to represent [federal habeas petitioner] in state court”). 28 In granting Bearup’s Rhines motion, the Court finds it appropriate to authorize 1 || Bearup’s habeas counsel to represent him in exhausting Claim 45 on state PCR. See, e.g., 2|| Eubanks v. Espinoza, No. 17cv0016 BEN (MDD), 2019 WL 4889734, at *5—6 (S.D. Cal. 3|| Oct. 3, 2019) (citing King, 564 F.3d at 1141); cf Samayoa v. Davis, No.: 00cv2118-W (AJB), 2022 WL 16753399, at *2—3 (S.D. Cal. Oct. 7, 2022) (authorizing federal defense 5 || counsel to represent petitioner on state habeas review because competency claim was ripe 6|| for review in state court). Bearup’s successive state PCR case is “inextricably intertwined || with his effort to obtain” the writ here. See Walker v. Baker, 2:15-cv-01240-RFB-GWF, 8 || 2016 WL 8735665, at *2 (D. Nev. Jan. 22, 2016). Habeas counsel investigated, researched, 9|| and argued Claim 45, as well as sought to develop evidence to support it. To conclude, authorization for habeas counsel to represent Bearup in a state PCR case serves the |} “interests of justice and judicial efficiency.” /d. The Court will grant Bearup’s 12 || authorization. 13 Accordingly, 14 IT IS ORDERED granting Bearup’s motion to stay, abey, and authorize (Doc. 15 || 160); staying and abeying this case pending the resolution of Bearup’s state-court PCR proceedings; and authorizing Bearup’s habeas counsel to represent him in those || proceedings. 18 IT IS FURTHER ORDERED that every 90 days, starting from the filing date of this Order, Bearup must file a status report regarding his state PCR case, and that within 20 || 21 days from the conclusion of the PCR case, including review, Bearup must move to lift the stay of this habeas case. 22 Dated this 30th day of September, 2024. 23

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