WO
John Vincent Fitzgerald, No. CV-19-05219-PHX-MTL
Petitioner, ORDER
v. DEATH-PENALTY CASE
Ryan Thornell, et al.,
Respondents.
Before the Court is Petitioner John Vincent Fitzgerald’s combined motion to stay and hold this case in abeyance until he exhausts certain habeas claims in state court (Doc. 60 at 1–19) and for authorization to have his habeas counsel represent him in state court (id. at 1, 19–22). Respondents oppose the former and take no position on the latter. (Doc. 66 at 1.) For the reasons below, the Court will deny both requests. In 1993, the Arizona 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 enactment of A.R.S. § 41-1604.09(I) and the decision in Simmons, a grand jury indicted Fitzgerald for a 2005 burglary and murder, and the State noticed the intent to seek a death sentence for the murder. (R.O.A. 4, 25.) A jury found Fitzgerald guilty as charged. (R.O.A. 469–70.) At the penalty phase for the murder, the court declared a mistrial. State v. Fitzgerald, 303 P.3d 519, 521 (Ariz. 2013). As a result, a new jury had to be selected for a new penalty phase. In selecting a jury for the new penalty phase, prospective jurors were told in a questionnaire that if the jury did not sentence Fitzgerald to death, the trial court would sentence him to life in prison, either with or without “the possibility of release.” (R.O.A. 644 at 10, emphasis added.) At voir dire, the court also told the prospective jurors that if not sentenced to death for the murder, the court would sentence Fitzgerald to life in prison, either with or without the “possibility of parole,” despite Fitzgerald being parole ineligible. (R.T. 5/24/10 at 13; R.T. 5/25/10 at 12; R.T. 5/26/10 at 7–8, emphasis added.) After empaneling a new penalty-phase jury, the court, without objection, instructed the jury that if it spared Fitzgerald’s life, the court would sentence him to life in prison, either with or without “the possibility of release.” (R.T. 6/2/10 at 39–40, 54–55; R.T. 8/18/10 at 30.) The court explained that life in prison without the possibility of release meant that he would be ineligible for release “on any basis,” including parole. (R.T. 6/2/10 at 40.) At no point did Fitzgerald seek a Simmons instruction, or to tell the jury that he was parole ineligible. The jury sentenced Fitzgerald to death. Fitzgerald, 303 P.3d at 521, ¶ 3. Fitzgerald did not raise a Simmons claim on direct appeal or on postconviction review (“PCR”). (See Opening Brief; R.O.A. 877.) Nor did he receive relief in either proceeding. (R.O.A. 916.) In 2015, the Arizona Supreme Court held in State v. Lynch (Lynch I) that a trial court did not err in refusing to give 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)). But the United States Supreme Court reversed Lynch I, holding that future clemency, or the 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). In 2019, Fitzgerald commenced this habeas case, and the Court appointed the Arizona Federal Public Defender’s Office to represent him but barred habeas counsel from representing Fitzgerald “in state forums or prepar[ing] any state court pleadings” absent the Court’s “express authorization.” (Doc. 1; Doc. 5 at 1). In July 2020, Fitzgerald filed his initial habeas petition. (Doc. 21.) Meanwhile, in April 2020, the Arizona Supreme Court agreed to review State v. Cruz (Cruz I), CR 17-0567-PC (Ariz.), to address whether Lynch II was a “significant change in the law” under Arizona Rule of Criminal Procedure 32.1(g), so as to bar a successive PCR raising a raising a Lynch II claim.1 In June 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 October, 2022, Fitzgerald amended his habeas petition, alleging in Claim 14 that the trial court violated his Fourteenth Amendment due process rights by failing to give a Simmons jury instruction. (Doc. 35 at 282–90.) He acknowledged that he did not seek such an instruction or raise a Simmons claim in state court. (Doc. 35 at 280, 282.) 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 Rule 32.1(g)” and that Cruz I was not based on an adequate and independent state-law ground as to bar Cruz’s filing of a successive PCR petition asserting a Lynch II claim. Cruz v. Arizona (Cruz II), 598 U.S. 17, 143 S. Ct. 650, 655 (2023) (quoting Ariz. R. Crim. P. 32.1(g)). The Court 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, — U.S. —, 143 S. Ct. 997 (2023) (Mem.).2 In light of Cruz II, Fitzgerald filed his combined motion, which is fully 1 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). 2 Prisoners Johnathan Burns, Steve Boggs, Ruben Garza, Fabio Gomez, Steven Newell, and Stephen Reeves filed a joint petition for a writ of certiorari based on Cruz II. briefed. (Docs. 62–63, 66–67.) A. Rhines Stay Under Rhines v. Weber, 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. 269, 271–79 (2005). 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 must first decide whether any of the claims that Fitzgerald seeks to exhaust are unexhausted. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009); see also, e.g., 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 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), id. at 32.1(a); when “newly discovered material facts probably exist” that “probably would have changed the judgment or sentence,” id. at (e); and when there is “a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence,” id. at (g). A constitutional claim under Rule 32.1(a) is precluded if it was “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding,” Ariz. R. Crim. P. 32.2(a)(2), or 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,” id. at (3). A claim under Rules 32.1(e) or (g) is precluded under Rule 32.2(a)(2) but not generally precluded under Rule 32.2(a)(3). Ariz. R. Crim. P. 32.2(b). As to claims of ineffective assistance of trial counsel, Arizona’s “basic rule is that where ineffective assistance of counsel claims [were] raised, or could have been raised, [on the first PCR], subsequently raised claims of ineffective assistance will be deemed waived and precluded.” State v. Spreitz, 39 P.3d 525, 526 (Ariz. 2002) (emphasis omitted); see also Stewart v. Smith, 46 P.3d 1067, 1071, ¶ 12 (Ariz. 2002) (“The ground of ineffective assistance of counsel cannot be raised repeatedly.”). Indeed, in Smith, the Arizona Supreme Court held that courts must find ineffectiveness of trial counsel claims raised in successive PCRs precluded “without examining facts,” including when an ineffective-assistance-of- trial-counsel claim on successive PCR falls within Rule 32.2(a)(3)’s personal-waiver exception. 46 P.3d at 1071, ¶ 12. Fitzgerald argues that his Simmons/Lynch II claim, as well as seven of his ineffective-assistance-of-trial-counsel claims, warrant a Rhines stay.3 (Doc. 63 at 1–19.) A. Fitzgerald’s Simmons/Lynch II Claim is Unexhausted Fitzgerald argues that his Simmons/Lynch II is now unexhausted based on Cruz II. Respondents assert that the Simmons/Lynch II claim remains exhausted despite Cruz II, in essence, because it is meritless. (Doc. 66 at 4–5.) The Court first finds Fitzgerald’s Simmons/Lynch II claim is unexhausted under Cruz II, as he may now pursue it on a successive PCR under Rules 32.1(g) and 32.2(b) because the existence of a significant change in the law permits review on a 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.”). See also Van Winkle, 2023 WL 3321709, at *4 (citing 28 U.S.C. § 2254(c); cf, Newman v. Norris, 597 F.Supp.2d 890, 895 (W.D. Ark. 2009) (granting Rhines stay to exhaust in state court as a matter or comity); Rodriguez v. Uhler, 15cv09297 (GBD) (DF), 2017 WL 9807068, at *8 (S.D.N.Y. Oct. 23, 2017) (same). B. Fitzgerald’s Simmons/Lynch II Claim Lacks Potential Merit Although Fitzgerald is not precluded from filing a successive PCR in state court to exhaust Claim 14, Claim 14 lacks potential merit to support a Rhines stay. See Rhines, 544 3 In Claim 14, Fitzgerald also asserts that the repeated incorrect jury instructions regarding his eligibility for parole also violated his Eighth Amendment right to a reliable penalty phase. (Doc. 35 at 282–90.) Because Fitzgerald does not seek a Rhines stay to exhaust this subclaim, the Court does not consider it here. U.S. at 277 (“[E]ven if a petitioner had good cause for that failure, th[is Court] would abuse its discretion if it were to grant [petitioner] a stay when his unexhausted claims are plainly meritless.”). Although the “potential merit” standard is not onerous, id., 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). Thus, 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). Respondents argue that the Simmons/Lynch II claim lacks potential merit under State v. Bush, 423 P.3d 370 (Ariz. 2018), because Fitzgerald did not seek to have the jury informed of his parole ineligibility. (Doc. 66 at 4–6.) In that case, the Arizona Supreme Court held that Simmons requires only that a defendant be given the opportunity to rebut his alleged future dangerousness by informing the jury of his parole ineligibility. Bush, 423 P.3d at 387–88. Fitzgerald asserts that even though he did not request a Simmons jury instruction at trial or to raise his parole eligibility to the jury, the trial court violated Simmons by incorrectly instructing the jury that he was parole eligible. (Doc. 62 at 9–10.) That incorrect instruction, he argues, “offends basic notions of fairness and due process.” (Doc. 63 at 9– 10.) “Capital sentencing proceedings must of course satisfy” due process. Clemons v. Mississippi, 494 U.S. 738, 746 (1990). Due process “expresses the requirement of ‘fundamental fairness.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 24 (1981). An incorrect jury instruction may deny such fairness if “‘the ailing instruction by itself so infected the entire trial [such] 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)). A capital defendant is also denied due process “when the death sentence was imposed, at least in part, on the basis of information which [he] had no opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362 (1977). 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. 512 U.S. at 156-78; see also Bush, 42 3 P.3d at 386-88, ¶¶ 69-75. Thus, Simmons expressly flows from the opportunity to have a jury informed of the defendant’s parole ineligibility. Simmons, 512 U.S. at 161 (Blackmun, J., joined by Stevens, Suter, and Ginsburg, JJ.); id. at 175 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., concurring in judgment). In Bush, the Arizona Supreme Court, parsing the Simmons plurality, found that Justice O’Connor’s concurrence offered the “‘narrowest ground[]’ that ‘may be viewed as [the] position taken by’ the [Supreme] Court on the issue of what due process requires in this context.’” 423 P.3d at 387 (quoting Marks v. United States, 430 U.S 188, 193 (1977)).4 Thus, the Bush court held that “the due process right under Simmons merely affords a parole-ineligible capital defendant the right to ‘rebut the State’s case’ (if future dangerousness is at issue) by informing the jury that ‘he will never be released from prison’ if sentenced to life.” Bush, 423 P.3d at 387 (quoting Simmons, 512 U.S. at 177, O’Connor, J., concurring in the judgment); see also O’Dell v. Netherland, 521 U.S. 151, 159 (1997) (noting that in Simmons “there was no opinion for the Court” and that four Justices merely “concluded that the Due Process Clause required allowing the defendant to inform the jury—through argument or instruction—of his parole ineligibility in the face of a prosecution’s future dangerousness argument”). The Arizona Supreme Court observed that in every case in which either it or the United States Supreme Court had found reversible Simmons error, the trial court had “either rejected the defendant’s proposed jury instruction regarding his ineligibility for parole, prevented defense counsel ‘from saying anything to the jury about parole ineligibility’ or both.” Id. at 388, ¶ 74 (citing Simmons, 512 U.S. at 175, Ginsburg, J., concurring); Lynch II, 578 U.S. at 614 (both); Kelly v. South Carolina, 534 U.S. 246, 249 (2002) (refusal to 4 In Marks, the court noted, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” (internal quotation omitted). This is known as the “Marks rule.” See e.g., Johnson v. City of Grants Pass, 72 F.th 868. 896 (9th Cir. 2023) (Collins, J. dissenting); United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1139 (9th Cir. 2005) (Berzon, J., dissenting in part). inform); Shafer v. South Carolina, 532 U.S. 36, 41–46 (2001) (citing both); State v. Hulsey, 408 P.3d 408, 435 (Ariz. 2018) (both); State v. Rushing, 404 P.3d 240, 249 (Ariz. 2017) (refusal to inform); State v. Escalante-Orozco, 386 P.3d 798, 828 (Ariz. 2017) (refusal to inform)). The Arizona Supreme Court denied Bush relief under Simmons because, “[u]nlike in the aforementioned cases, the trial court neither refused to instruct, nor prevented Bush from informing, the jury regarding his parole ineligibility.” Id., ¶ 75. At Fitzgerald’s trial, the court incorrectly instructed jurors that he was eligible for parole, when he was not. It did not, however, deny Fitzgerald the opportunity to have the jury informed of his parole ineligibility through a curative instruction, as Fitzgerald did not request one. Nor did he ask to inform the jury himself of such ineligibility. In short, Fitzgerald’s Simmons/Lynch II claim lacks potential merit because Fitzgerald did not seek to have the jury informed of his parole ineligibility either through a curative instruction or argument to the jury. As the Fourth Circuit noted in Townes v. Murray, “[T]he defendant’s right, under Simmons, is one of opportunity, not of result.” 68 F.3d 840, 850 (4th Cir. 1995). To the extent Fitzgerald claims that the trial court denied him due process, it did not deny him due process under Simmons. Fitzgerald cites an array of case law to support his contentions to the contrary. (Doc. 63 at 9; Doc. 67 at 5–8 and n.2.) He asserts that Cruz II and the remand of the six cases in Burns casts doubt on the interpretation of Simmons above, noting that four of those petitioners never invoked Simmons at trial. (Doc. 67 at 5 n.2.) 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 [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 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)). Fitzgerald also cites Chief Justice Rehnquist’s dissent in Kelly v. South Carolina, 534 U.S. 246, 258-59 (2002), for the proposition that the majority had expanded the due process right announced in Simmons to instances when the prosecutor had not argued future dangerousness, but where evidence introduced to prove other elements of the case had a tendency to put the defendant’s future dangerousness at issue. (Doc. 67 at 6–8.) But in Kelly, the Supreme Court did not expand Simmons, as suggested by Fitzgerald, to impose an affirmative duty on a court to sua sponte provide a Simmons instruction absent a defendant’s request. Instead, counsel in Kelly had requested, and was denied, a Simmons instruction. Chief Justice Rehnquist did not state that Kelly imposed that affirmative duty; rather, the Chief Justice stated that Kelly expanded Simmons by applying Simmons even if the state only implied—but did not expressly argue—the defendant’s future dangerousness. The holding in Kelly did not alter the rule under Simmons that a defendant must invoke Simmons at trial or provide a basis to distinguish Fitzgerald’s case from the holdings in Bush and Simmons. Fitzgerald also contends that Shafer renders his Simmons/Lynch II claim potentially meritorious. (Doc. 67 at 6–8.) In Shafer, the defendant requested, but was denied, a Simmons instruction. 532 U.S. at 41–42. The United States Supreme Court held “that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina’s then-new scheme, due process require[d] that the jury be informed that a life sentence carrie[d] no possibility of parole.” Id. at 51. The Supreme Court rejected the state’s argument that Simmons was satisfied where, at closing argument, the defendant told the jury that if his life was spared, he would “die in prison” after “spend[ing] his natural life there.” Id. at 52–54. The Supreme Court explained that “[d]isplacement of [South Carolina’s] ‘longstanding practice of parole availability’ remain[ed] a [then-] relatively recent development, and ‘common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole.’” Id. at 52 (quoting Simmons, 512 U.S. at 177–78, O’Connor, J., concurring). “In sum, a life sentence for Shafer would permit no ‘parole, community supervision, . . . early release program, . . . or any other credits that would reduce the mandatory life imprisonment”; “this reality was not conveyed to Shafer’s jury by the court’s instructions or by the arguments defense counsel was allowed to make.” Id. at 54. The holding in Shafer did not alter the rule under Simmons that a defendant must invoke Simmons at trial. Fitzgerald further cites State v. Laney, in which the South Carolina Supreme Court held: [W]here a defendant’s future dangerousness is at issue in a capital sentencing proceeding, and the only sentencing alternative to death available to the jury is life imprisonment without parole, 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. 627 S.E.2d 726, 730 (S.C. 2006). Although the Laney court imposed that requirement following the decisions in Shafer and Kelly, neither of those cases altered the rule under Simmons, or Gardner, that where future dangerousness is at issue, a defendant must invoke Simmons in order to be afforded the opportunity to inform the jury of the defendant’s parole ineligibility. The United States Supreme Court has not imposed the requirement in Laney. Finally, Fitzgerald cites Bronshtein v. Horn, in which a federal district court in Pennsylvania granted habeas relief on a Simmons claim 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. 67 at 6–7, 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 concluded that there was no procedural default sufficient to prevent it from considering Bronshtein’s claims on the merits; that is, 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 Bronshtein’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 Supreme Court of Pennsylvania had not relied on Bronshtein’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 his failure to object at trial, this Court agrees with the Bush and Townes courts’ reading of Simmons: 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. In sum, Cruz II renders Fitzgerald’s Simmons/Lynch II claim unexhausted and his petition mixed. That claim nonetheless lacks potential merit, where Fitzgerald failed to invoke Simmons at trial, as discussed above. Accordingly, the Court will deny habeas relief on that claim because it is plainly meritless. 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.”). C. Ineffective-Assistance-of-Trial Counsel Claims Fitzgerald also argues that seven of his ineffective-assistance-of-trial-counsel claims warrant a Rhines stay (Claims 1, 8, 9, 11, 13, 15, and 16). (Doc. 35 at 57–107, 189– 244, 251–60, 270–81, 209–338; Doc. 63 at 14 n.2.) The PCR court denied relief on Claims 1, 8, 9, 11 (R.O.A. 877 at 28–39, 52–60, 74–76, 76–92; PFR 5 at 7–9, 15, 18–19, 19–24), and the Arizona Supreme Court denied review (R.O.A. 916 at 4–17, 24–40, 64–67, 67–77; PFR 22). As a result, Claims 1, 8, 9, and 11 are exhausted and therefore barred from relief on successive PCR under Rule 32.2(a)(2). Fitzgerald did not raise Claims 13, 15, or 16 as part of his ineffective-assistance claims. (See R.O.A. 877; PFR 5.) Therefore, Claims 13, 15, and 16 are now technically exhausted and barred on successive PCR. See Spreitz, 39 P.3d at 526; Smith, 46 P.3d at 1071, ¶ 12; see also, e.g., Armstrong, 2017 WL 1152820, at *6; Lopez v. Schriro, No. CV- 98-0072-PHX-SMM, 2008 WL 2783282, at *9 (D. Ariz. July 15, 2008), amended in part, No. CV-98-0072-PHX-SMM, 2008 WL 4219079 (D. Ariz. Sept. 4, 2008), and aff’d sub nom. Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011) (“[I]f additional ineffectiveness allegations are raised in a successive petition, the claims in the later petition necessarily will be precluded.”). Relying on Fitzgerald v. Myers, 402 P.3d 442, 445–51 (Ariz. 2017), Fitzgerald argues that his incompetence on PCR provides an available avenue to exhaust the ineffective-assistance claims under Rule 32.1(e). (Doc. 63 at 16; Doc. 67 at 11.) Fitzgerald does not support this argument. See, e.g., Morris v. Thornell, No. CV-17-00926-PHX- DGC, 2023 WL 4237334, at *9 (D. Ariz. June 28, 2023). In that case, the Arizona Supreme Court held that state law did not require that a defendant be competent during PCR. Fitzgerald, 402 P.3d at 445. The court did not address whether there was a due process right to be competent during PCR because it had not been properly raised. Id. at 451. The court acknowledged that, at times, “a capital defendant’s input and participation regarding a particular Rule 32 claim are needed and [are] perhaps imperative.” Id. at 450. But “any alleged prejudice caused by the petitioner’s incompetency may be addressed in a successive PCR petition based on newly discovered facts under Rule 32.1(e). Id. at 449 (emphasis added). Fitzgerald asserts that these ineffective-assistance claims are not precluded on a successive PCR under Rule 32.1(e) “based on newly discovered material facts that could not have been discovered previously due to [his] incompetence.” (Doc. 63 at 17.) But he does not allege any newly discovered material facts as to Claims 13, 15, or 16. Nor does he argue or show that his “input and participation” were necessary or imperative, to discover any new facts and thereby fails to establish that he has an available remedy based on newly discovered facts. Because Fitzgerald’s ineffective-assistance claims are either actually exhausted, Claims 1, 8, 9, and 11, or technically exhausted, Claims 13, 15, and 16, Rhines does not apply to them. See Rhines, 544 U.S. at 271–79 (permitting a stay of a federal habeas case, “in limited circumstances,” to allow petitioners to exhaust unexhausted claims in state court); see also, e.g., McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *3 (D. Ariz. Feb 26, 2020) (denying Rhines stay, without reaching the three-pronged Rhines test, because the claims are technically exhausted, as they have no available state- court remedy); Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2019 WL 1227179, at *1– 2 (D. Ariz. Mar. 15, 2019) (same). Thus, the Court will deny a Rhines stay as to them. Fitzgerald 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. 63 at 1, 19–22.) 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 . . . 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)) (holding as such, 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 Fitzgerald a Rhines stay, such authorization is inappropriate. See, e.g., id. 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 based on denial of a Rhines stay for no good cause shown and “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”).5 . . . . . . . . . . . . . . . . . . 5 To support this motion, Fitzgerald refers the Court to Exhibit B, Memorandum re Use of Defender Services Appropriated Funds by Federal Appointed Counsel for State Court Appearances in Capital Habeas Corpus Cases of District/Circuit Court Judge Claire V. Eagen (Dec. 9, 2010)). Judge Eagan stated that her memorandum was intended to address the issue of expending federal funds in state court after a habeas court has determined that a remedy is available to exhaust it in state court. Id. at 2. That is not the case here. 1 Accordingly, IT IS ORDERED denying Claim 14 to the extent that it asserts a violation of 3. Simmons and Lynch IT. IT IS FURTHER ORDERED denying Fitzgerald’s Motion for Temporary Stay and Abeyance and for Authorization to Represent Petitioner in State Court (Doc. 63). Dated this Ist day of September, 2023. Wichal T. Hburde ? Michael T. Liburdi United States District Judge
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