Cropper v. Thornell

Opinion

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

9 Leroy D. Cropper, No. CV-19-05618-PHX-GMS

10 Petitioner, DEATH PENALTY CASE

11 v. ORDER

12 Ryan Thornell,1 et al.,

13 Respondents. 14 15 16 Pending before the Court is Petitioner Leroy D. Cropper’s Unopposed Motion for 17 Stay and Abeyance and for Authorization to Represent Petitioner in State Court. (Doc. 92.) 18 Citing the United States Supreme Court’s recent decision in Cruz v. Arizona, 598 U.S. ___, 19 143 S. Ct. 650 (2023), Petitioner seeks an order staying and holding in abeyance the current 20 federal habeas proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he 21 may present unexhausted Claim 2 in state court. Petitioner also asks the Court to authorize 22 the Federal Public Defender for the District of Arizona (“FPD”) to represent him in the 23 related state court proceedings. 24 For the reasons stated in Petitioner’s motion, the Court finds that the requirements 25 for a stay under Rhines have been satisfied. (See Doc. 92 at 7–13.) Claim 2, alleging a 26 violation of Petitioner’s right to a parole ineligibility instruction under Simmons v. South 27 1 Under Federal Rule of Civil Procedure 25(d), Ryan Thornell, the Director of the Arizona 28 Department of Corrections, Rehabilitation & Reentry, is substituted for the former Director, David Shinn. Carolina, 512 U.S. 154 (1994), is not plainly meritless; good cause exists for Petitioner’s 2|| failure to exhaust the claim; and Petitioner has not been dilatory in seeking a stay. 3 The Court will also grant Petitioner’s request for the FPD to represent him in pursuing Claim 2 in state court. See Harbison vy. Bell, 556 U.S. 180, 190 n.7 (2009) 5|| (“Pursuant to [18 U.S.C.] § 3599(e)’s provision that counsel may represent her client in || ‘other appropriate motions and procedures,’ a district court may determine on a case-by- 7\|| case basis that it is appropriate for federal counsel to exhaust a claim in the course of her 8 || federal habeas representation.’’). 9 Accordingly, 10 IT IS ORDERED that Petitioner’s motion seeking a stay and abeyance of his 11 || federal habeas proceedings (Doc. 92) is GRANTED. 12 IT IS FURTHER ORDERED authorizing Petitioner’s federal habeas counsel, the 13 || Federal Public Defender for the District of Arizona, to represent Petitioner in state || postconviction proceedings to exhaust Claim 2. 15 IT IS FURTHER ORDERED directing Petitioner to file notice with the Court or 16|| move for other appropriate relief within 30 days of the conclusion of the state court 17 || proceedings. 18 Dated this 24th day of May, 2023. 19 - A Whacrsay Fotos Micrrey 9] Chief United States District Judge 22 23 24 25 26 27 28

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