Chappell v. Shinn

• Court: District Court, D. Arizona
• Decided: February 2, 2024
• Docket: 2:15-cv-00478
• Status: Unknown

Opinion

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

9 Derek Don Chappell, No. CV-15-00478-PHX-SPL

10 Petitioner, ORDER

11 v. DEATH PENALTY CASE

12 Ryan Thornell, et al.,

13 Respondents. 14 15 Before the Court is Petitioner Derek Don Chappell’s motion to stay this case, 16 pending his second postconviction-review (PCR) case in state court. (Doc. 127.) 17 Respondents object. (Doc. 130.) For the reasons below, the Court will deny the motion. 18 I. BACKGROUND 19 In 2007, a jury convicted Chappell of the 2003 child-abuse and the 2004 first-degree 20 murder of his fiancé’s child. State v. Chappell, 236 P.3d 1176, 1180–81 (Ariz. 2010), 21 abrogation on other grounds recognized in Cruz v. Arizona, 598 U.S. 17, 21–22 n.1 (2023). 22 The jury sentenced him to death for the murder, id., and the trial court sentenced him to 17 23 years in prison for the child abuse (ROA 603). The Arizona Supreme Court affirmed his 24 convictions and sentences, and in 2011, the United States Supreme Court denied certiorari. 25 Chappell, 236 P.3d at 1190; Chappell v. Arizona, 562 U.S. 1227 (2011). Chappell then 26 sought PCR in state court, raising claims of ineffective assistance of trial counsel (IAC). 27 (Doc. 42 at 7, 13–43, 45–58.) The court denied relief, and in March 2015, the Arizona 28 Supreme Court denied review. (Doc. 70 at 10–17; Doc. 72 at 61–62.) 1 In February 2016, Chappell filed a petition in this Court for a writ of habeas corpus, 2 raising two other IAC claims for the first time (the Claims).1 (Doc. 25 at 79–84, 93–105.) 3 He stated that these claims were procedurally defaulted, as they were not raised on initial 4 PCR, and were barred on successive PCR. (Id. at 79, 93.) He argued that cause and 5 prejudice excused the default because his PCR counsel rendered ineffective assistance by 6 not raising them. (Id. at 79–84, 93–105.) He later asked to develop evidence in support of 7 the Claims and to excuse their default. (Doc. 105 at 26–29, 35–39.) The parties finished 8 briefing the petition in November 2016 and the evidentiary-development request in May 9 2017. (Docs. 33, 87, 107–08.) 10 In mid-December 2023, while the petition and request were pending in this Court, 11 Chappell noticed the filing of his successive PCR in state court and thus asked this Court 12 to stay this habeas case. (Doc. 127; Doc. 127-1 at 2–10.) Chappell sought a stay under 13 either Rhines v, Weber, 544 U.S. 269 (2005), or the Court’s inherent stay power, noting 14 that he would raise the Claims on his successive PCR. (Doc 127 at 1–8.) After he filed the 15 motion, he filed his PCR petition, raising the Claims, as well as a claim that his prior PCR 16 counsel rendered ineffective assistance by not raising them on his initial PCR. (Doc. 130- 17 1 at –73.) The briefing on Chappell’s stay motion finished thereafter. (Docs. 130–31.) 18 II. RHINES DISCUSSION 19 The parties disagree whether the Claims are exhausted in state court and thus 20 whether Rhines applies. (Doc. 127 at 1–4; Doc. 130 at 9–12; Doc. 131 at 2–3.) 21 A. Rhines Stay 22 Under Rhines, the Court may stay a habeas case that contains both exhausted and 23 unexhausted claims while the petitioner exhausts the latter claims in state court, before 24 returning to this Court for review of the fully exhausted petition. 544 U.S. at 271–79. A 25 Rhines stay is proper only if the petitioner shows (1) “good cause” for the failure to exhaust, 26 (2) the unexhausted claim is “potentially meritorious,” and (3) the petitioner did not 27 28 1 The Claims challenge the sufficiency of trial counsel’s investigation and presentation of evidence. (Doc. 25 at 79–84, 93–105.) 1 “engage[] in intentionally dilatory litigation tactics.” Id. at 277–78. 2 Because a Rhines stay applies solely to a petition with both exhausted and 3 unexhausted claims, this Court must first decide whether any of the Claims are 4 unexhausted. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009); see also, e.g., Bearup 5 v. Shinn (Bearup I), No. CV-16-03357-PHX-SPL, 2023 WL 1069686 (D. Ariz. Jan. 26, 6 2023). 7 A habeas claim has not been exhausted in state court if a petitioner has the right 8 under state law to seek relief on the claim by any available procedure. 28 U.S.C. § 2254(c). 9 But a claim is exhausted if (1) it has been fairly presented to the highest state court with 10 jurisdiction to consider it or (2) no state remedy remains available to exhaust the claim. 11 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A state remedy is not available if the 12 state’s procedural rules bar the state court from considering it, causing it to be “technically 13 exhausted.” See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (citing Gray v. Netherland, 518 14 U.S. 152, 161 (1996)); Coleman v. Thompson, 501 U.S. 722, 732 (1991) (citing 28 U.S.C. 15 § 2254(b); Engle v. Isaac, 456 U.S. 107, 125–26 n.28 (1982)); Smith v. Baldwin, 510 F.3d 16 1127, 1139 (9th Cir. 2007). Hence, a Rhines stay should not be granted if a petition contains 17 only claims that are actually or technically exhausted. See, e.g., Pritchett v. Gentry, No. 18 2:17-cv-01694-JADDJA, 2022 WL 4366996, at *4 (D. Nev. Sept. 21, 2022) (noting “[t]he 19 point of [the] stay is to allow” presentment of “unexhausted claims” in state court); White 20 v. Ryan, No. CV09-2167-PHX-FJM (LOA), 2010 WL 1416054, at *12 (D. Ariz. Mar. 16, 21 2010). 22 B. Procedural Default and Preclusion of Successive IAC Claims 23 Procedural default is “[a] corollary” to the proper-exhaustion requisite. Dretke v. 24 Haley, 541 U.S. 386, 392 (2004). The default applies when an “adequate and independent 25 state law ground[ ]” expressly or impliedly bars a federal habeas court from considering a 26 habeas claim’s merits. Id. at 392; Coleman, 501 U.S. at 731–32 and 735 n.1 (implied bar). 27 A claim is expressly barred where it was raised in state court, but the court found it 28 precluded under an adequate and independent state procedural rule. Dretke, 541 U.S. at 1 392. A claim is impliedly barred where it was not raised in state court, and where an 2 adequate and independent state procedural rule would now bar it from being raised in state 3 court. Id.; Coleman, 501 U.S. at 731–32 and 735 n.1. 4 In Arizona, pursuant to Arizona Rule of Criminal Procedure 32.2(a)(3), if an IAC 5 claim was raised on initial PCR, Arizona courts will necessarily bar all other IAC claims 6 raised for the first time on successive PCR. Stewart v. Smith, 46 P.3d 1067, 1071, ¶ 12 7 (Ariz. 2002) (explaining that IAC “cannot be raised repeatedly” or piecemeal); State v. 8 Spreitz, 39 P.3d 525, 526 (Ariz. 2002); see also State v. Traverso, 537 P.3d 345, 347–49, 9 ¶¶ 9–13 (Ariz. Ct. App. 2023) (implying that Stewart binds Arizona courts). Chappell has 10 not shown that this “basic rule” in Arizona, Spreitz, 39 P.3d at 526, is either not adequate 11 or not independent to preclude an IAC claim on successive PCR. 12 C. The Claims Are Barred From Review on the Merits in State Court 13 As noted above, Chappell’s initial PCR raised IAC claims but did not include the 14 Claims at issue here. The Claims, therefore, are barred on successive PCR under Stewart, 15 Spreitz, and Traverso. (Doc. 42; Doc. 127 at 6; Doc. 130 at 9.) That is, the Claims are 16 technically exhausted, and Rhines does not apply to them. See, e.g., Armstrong v. Ryan, 17 No. CV-15-00358-TUC-RM, 2017 WL 1152820, at *6 (D. Ariz. Mar. 28, 2017); Lopez v. 18 Schriro, No. CV-98-0072-PHX-SMM, 2008 WL 2783282, at *9 (D. Ariz. July 15, 2008) 19 (“[I]f additional [IAC claims] are raised in a successive petition, the[y] necessarily will be 20 precluded.”), amended in part, No. CV-98-0072-PHX-SMM, 2008 WL 4219079 (D. Ariz. 21 Sept. 4, 2008), and aff’d sub nom. Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011). 22 Chappell asserts that it is unclear whether the Claims are technically exhausted. 23 (Doc. 131 at 2–5.) In deciding whether to grant a Rhines stay, this Court must decide if a 24 petitioner currently has a remedy available in state court. Armstrong, 2017 WL 1152820, 25 at *3 (citing Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998), overruled on other grounds 26 as recognized by Apelt v. Ryan, 878 F.3d 80, 827–28 (9th Cir. 2017)). Chappell’s 27 contention that the PCR court may reach the merits of the Claims and not find them 28 procedurally barred is speculative. The Court declines to stay this case under Rhines. Cf. 1 Johnson v. Ryan, No. 2:18cv00889-PHX-DWL, 2019 WL 1227179, at *5 (D. Ariz. Mar. 2 15, 2019) (denying a Rhines stay, based on the habeas court’s evaluation of an uncritical 3 acceptance of petitioner’s assertion that some of his habeas claims is petition were 4 unexhausted as a matter of state law based on the court’s evaluation, citing Armstrong); 5 Armstrong, 2017 WL 1152820, at *3 (rejecting argument that a stay was appropriate 6 because it was “not absolutely clear” that a successive petition would be procedurally 7 barred, citing Ortiz, 149 F.3d at 931). 8 Chappell argues that the Claims may be unexhausted under Shinn v. Ramirez, 596 9 U.S. 366 (2022). (Doc. 131 at 4 n.1.) In Ramirez, the United States Supreme Court held 10 that in deciding a Martinez claim,2 “a federal habeas court may not conduct an evidentiary 11 hearing or otherwise consider evidence beyond the state-court record based on ineffective 12 assistance of state post-conviction counsel” unless the petitioner satisfies the stringent 13 requirements of 28 U.S.C. § 2254(e)(2). 596 U.S. at 382. Section 2254(e)(2) applies only 14 when there has been “a failure to develop the factual basis of a claim” due to “a lack of 15 diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. 16 at 383 (quoting Williams v. Taylor, 529 U.S. 420, 432 (2000)). A petitioner bears 17 “‘responsibility’ for all attorney errors during [PCR] proceedings,” including “counsel’s 18 negligent failure to develop the state postconviction record.” Id. (quoting Williams, 529 19 U.S. at 432). In a case where postconviction counsel negligently failed to develop the 20 postconviction record, a federal habeas court cannot order an evidentiary hearing or 21 otherwise expand the state-court record unless the petitioner satisfies § 2254(e)(2).3 Id.

22 2 Martinez v. Ryan, 566 U.S. 1 (2012) (holding that ineffective assistance of PCR counsel 23 may constitute cause to excuse the procedural default of an IAC habeas claim in federal 24 court). 3 Under § 2254(e)(2), if the petitioner has “failed to develop the factual basis of a claim in 25 State court proceedings,” a district court cannot hold an evidentiary hearing on the claim 26 unless “(1) the claim relies on either a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review or a factual predicate that could not have 27 been previously discovered through due diligence and (2) the facts underlying the claim 28 would establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty.” 1 Ramirez has no effect on state postconviction preclusion rules, nor does it render 2 Chappell’s Claims “unexhausted rather than technically exhausted.” See, e.g., Ellison v. 3 Thornell, No. CV-16-08303-PCT-DWL, 2023 WL 4847599, at *6 (D. Ariz. July 28, 2023). 4 Ramirez addressed only “whether the equitable rule announced in Martinez permits a 5 federal court to dispense with § 2254(e)(2)’s narrow limits because a prisoner’s state 6 postconviction counsel negligently failed to develop the state-court record.” 596 U.S. at 7 371. The Court held that it does not. Id. at 381. In short, Ramirez does not render the Claims 8 unexhausted. 9 Chappell cites orders granting Rhines stays “to permit petitioners to comply with 10 Ramirez’s . . . mandate [presumably to develop the state-court record] by presenting 11 unexhausted IAC claims to the state courts.” (Doc. 127 at 6 n.2, citing Clabourne v. 12 Thornell, No. 23-99000 (9th Cir. Nov. 15, 2023); Pandeli v. Shinn, No. CV-17-01657- 13 PHX-JJT, 2022 WL 16855196 (D. Ariz. Nov. 10, 2022); Guevara-Pontifes v. Baker, No. 14 3:20-cv-00652-ART-CSD, 2022 WL 4448259 (D. Nev. Sept. 23, 2022); Hairston v. 15 Sorber, No. 2:22-cv-00234-MJH (W.D. Pa. Sept. 14, 2022) (Docs. 20 and 22); Moncada 16 v. Perry, No. 3:19-cv-00231-MMD-CLB, 2022 WL 3636467, at *2–5 (D. Nev. Aug. 23, 17 2022); Derrick v. Secretary, No. 8:08-cv-01335-TPB-SPF (M.D. Fl. Aug. 19, 2022) (Docs. 18 122 and 127); Ali v. Oliver, No. 2:19-cv-04339, 2022 WL 2911700, at *3–4 (E.D. Pa. July 19 22, 2022); Hunter v. Baca, No. 3:18-cv-00166-HDM-CLB (D. Nev. July 12, 2022) (Doc. 20 54); Ortiz v. Cain, No. 2:12-cv-02310-JTM-KWR (E.D. La. July 7, 2022) (Docs. 162–63).) 21 But those orders differ from this case. 22 In many of the above cases, respondents did not dispute that the claims at issue were 23 unexhausted. See Clabourne, supra.; Pandeli, 2022 WL 16855196, at *3; Ali, 2022 WL 24 2911700, at *3–4; Hunter, supra.; Ortiz, supra. The rest of the orders Chappell cites found 25 the IAC claims unexhausted on successive PCR based upon the alleged ineffective 26 assistance of prior PCR counsel on the initial PCR. See Guevara-Pontifes, 2022 WL 27 4448259, at *3–5; Hairston, supra.; Moncada, 2022 WL 3636467, at *2–5; Derrick, supra. 28 But in Arizona, the alleged ineffective assistance of PCR counsel is not cognizable on 1 successive PCR for non-pleading defendants—such as Chappell—because such defendants 2 “have no constitutional right to counsel” on successive PCR. State v. Escareno-Meraz, 307 3 P.3d 1013, 1014, ¶ 4 (Ariz. Ct. App. 2013) (citing cases); see State v. Petty, 238 P.3d 637, 4 641, ¶ 11 (Ariz. Ct. App. 2010) (noting that only a pleading defendant may file a successive 5 notice requesting PCR based on claims of ineffective assistance of prior PCR counsel). 6 Chappell implies that the state court considering his successive PCR might rule on 7 the merits of the Claims, under Martinez, 566 U.S. 1, without applying Arizona’s 8 procedural bar. (Doc. 127 at 5–6; Doc. 131 at 4 n.1.) This argument fails. In Martinez, the 9 United States Supreme Court held that the ineffective assistance of PCR counsel may 10 constitute cause to excuse a procedural default of an IAC claim. 566 U.S. at 17; Trevino v. 11 Thaler, 569 U.S. 413, 423 (2013). 12 But Martinez does not alter Arizona’s preclusion rule as to IAC claims raised on 13 successive PCR. Morris v. Thornell, No. CV-17-00926-PHX-DGC, 2023 WL 4237334, at 14 *10 (D. Ariz. June 28, 2023) (citing State v. Escareno-Meraz, 307 P.3d 1013, 1014 (Ariz. 15 Ct. App. 2013), holding that “Martinez does not alter established Arizona law”); see also 16 State v. Evans, 506 P.3d 819, 826–27, ¶¶ 23–25 (Ariz. Ct. App. 2022) (holding that neither 17 Martinez nor Rule 32 permits merit-review of precluded PCR claims in state court based 18 on the alleged ineffective assistance of PCR counsel). Thus, the alleged ineffective 19 assistance of PCR counsel is not cognizable on Chappell’s successive PCR. See Escareno- 20 Meraz, 307 P.3d at 1014, ¶ 4; see also Petty, 238 P.3d at 641, ¶ 11. Martinez concerns 21 whether a federal habeas court may excuse a procedurally-defaulted claim and reach the 22 merits—not whether a state court may remove a procedural bar and decide a claim on the 23 merits. See Evans, 506 P.3d at 826–27, ¶¶ 23–25. Martinez, in sum, does not render the 24 Claims unexhausted. 25 For the reasons discussed, this Court will deny a Rhines stay. 26 III. DISCUSSION ON THE COURT’S INHERENT STAY POWER 27 A federal court “has discretionary power” to stay a case before it. Lockyer v. Mirant 28 Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 1 (1936)); see Landis, 229 U.S. at 254 (explaining the power “is incidental” to the court’s 2 inherent power “to control the disposition of the causes on its docket with economy of time 3 and effort for itself, for counsel, and for litigants”). 4 In assessing whether to exercise its inherent discretionary power to stay a case, a 5 federal court must weigh “the competing interests,” such as the “possible damage” that 6 could result from a stay, “the hardship or inequity” on a party in having “to go forward,” 7 and the simplification or complication of “issues, proof, and questions of law which could 8 be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) 9 (citing Landis, 299 U.S. at 254–55); see Lockyer, 398 F.3d at 1110–11 (A stay may be 10 suitable when the resolution of issues in a related case will help resolve the stated case.); 11 Leyva v. Certified Grocers of California, 593 F.2d 857, 863 (9th Cir. 1979) (The Court 12 “may, with propriety, find it is efficient for its own docket and the fairest course for the 13 parties” to stay a case pending the end of “independent proceedings” that will affect the 14 case.). The proponent has the burden to show the propriety of stay. Clinton v. Jones, 520 15 U.S. 681, 709 (1997) (citing Landis, 299 U.S. at 255). 16 An indefinite stay “should not be granted under normal circumstances.” Synergy 17 Greentech Corp. v. Magna Force, Inc., No. C12-5543 BHS, 2013 WL 1499065, at *2 18 (W.D. Wash. Apr. 10, 2013) (citing Dependable Highway Express, Inc. v. Navigators Ins. 19 Co., 498 F.3d 1059, 1066 (9th Cir. 2007)). “Generally, stays should not be indefinite in 20 nature.” Dependable Highway Express, Inc., 498 F.3d at 1066. “[A] greater showing” is 21 necessary to justify an indefinite or lengthy stay. Yong v. I.N.S., 208 F.3d 1116, 1119 (9th 22 Cir. 2000). 23 Chappell seeks an indefinite, or at least an indeterminate, stay, in light of the 24 unknown end to his successive PCR. Therefore, he must make a greater showing in support 25 of a discretionary stay. See Bearup v. Shinn (Bearup II), No. CV-16-03357-PHX-SPL, 26 2022 WL 17741055, at *2 (D. Ariz. Dec. 16, 2022) (applying this higher burden because 27 the requested stay pending a Ninth Circuit decision was indefinite); see also Jellinek v. 28 Advance Prods. & Sys., Inc., No. 3:11-CV-02954-H (DHB), 2013 WL 692969, at *2 (S.D. 1 Cal. Feb 26, 2013) (describing a stay pending the end of a “related state action” as 2 indefinite). 3 Chappell has not shown the need for a stay—let alone an indefinite one. He asserts 4 that a stay “would promote judicial economy by” averting parallel cases in state and federal 5 court, where each case has the same parties and where a merits-ruling on the Claims in 6 state court would “affect the claims, arguments, and issues raised” in this Court. (Doc. 127 7 at 4–5.) He argues that a ruling on the merits of the Claims by the PCR court would require 8 this Court to address the Claims on the merits under 28 U.S.C. § 2254(d).4 (Id. at 4.) He 9 adds that a merits-ruling granting relief would moot at least some of his habeas claims. (Id. 10 at 4–5.) 11 But Chappell’s contention that the PCR court might rule on the merits of the Claims 12 is, at best, speculative. As discussed, an adequate and independent state procedural bar 13 prevents the PCR court from reaching the merits in a successive PCR. (See Section II(C), 14 supra.). See Dretke, 541 U.S. at 392; Coleman, 501 U.S. at 731–32 and 735 n.1. The Court 15 declines to grant a discretionary stay based on speculation that the PCR court will reach 16 the Claims’ merits. Chappell does not identify reasons why the PCR court would reach the 17 merits of the Claims, when doing so would intend to undercut the adequacy of that rule by 18 doing so. Accordingly, the Court will deny Chappell’s request for an indefinite 19 discretionary stay of this case. Compare Bearup II, 2022 WL 17741055, at *2 (denying 20 indefinite stay of habeas case pending a Ninth Circuit case irrelevant to the habeas case), 21 and Jellinek, 2013 WL 692969, at *2 (denying indefinite stay when it is “unclear whether 22 the outcome of [the related state case] will have a dispositive effect on the resolution of the 23 action before [the district court]”), with Alve v. Scribner, No. 08-CV-0162 W(LSP), 2008 24 WL 4192291, *1 (S.D. Cal. Sept. 10, 2008) (noting that “[s]taying cases . . . on the forefront 25 26 4 Under AEDPA, the Court may grant a writ of habeas corpus, on a claim adjudicated on the merits in state court, only if the adjudication produced a decision that (1) contradicts or 27 unreasonably applies “clearly established federal law,” as determined by the United States 28 Supreme Court or (2) unreasonably determines the pertinent facts “in light of the evidence presented in” state court. 28 U.S.C. § 2254(d). || of an issue provides a necessary delay, allowing for resolution of the issues and resulting 2|| in uniform treatment of like suits’’). 3 To hold otherwise would needlessly delay this case indefinitely and would permit 4|| an indefinite stay based on speculation. Because a stay is unjustified under this Court’s 5 || inherent stay power and under Rhines, 6 IT IS ORDERED denying Chappell’s Motion for Temporary Stay (Doc. 127). 7 Dated this 2nd day of February, 2024. 8

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