Martinez v. Shinn

Opinion

1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cody James Martinez, No. CV CV-21-163-RM 10 Petitioner, 11 v. ORDER TO SHOW CAUSE 12 David Shinn, et al., 13 Respondents.

14 15 Petitioner Cody James Martinez, who is confined in the Arizona State Prison 16 Complex in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus and Motion 17 for Stay of Execution and Application for Appointment of Counsel [Capital Case] (Doc. 1) 18 and an Application to Proceed In Forma Pauperis (Doc. 3). 19 I. Application to Proceed In Forma Pauperis 20 Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate trust 21 account balance is less than $25.00. Accordingly, the Court will grant Petitioner’s 22 Application to Proceed In Forma Pauperis. See LRCiv 3.5(c). 23 II. Petition 24 Petitioner was convicted in Pima County Superior Court, case #CR-20031993, of 25 premeditated first degree murder, felony murder, and kidnapping and was sentenced to 26 death. His convictions and death sentence were affirmed by the Arizona Supreme Court on 27 July 25, 2008, in State v. Cody James Martinez, 218 Ariz. 421 (2008). The United States 28 Supreme Court denied Petitioner’s petition for writ of certiorari on November 3, 2008. 1 The state trial court subsequently granted postconviction relief in part and vacated 2 Petitioner’s sentence of death. See State v. Martinez, CR 20031993, Amended Under 3 Advisement Ruling, May 18, 2017. Petitioner asserts that the Arizona Supreme Court 4 upheld the grant of penalty phase relief and remanded for merits consideration of the guilt 5 and aggravation phase claims only. On February 20, 2021, the Arizona Supreme Court 6 upheld the trial court’s denial of relief on the guilt and aggravation phase claims, and the 7 United States Supreme Court denied his petition for certiorari on June 3, 2021. See 8 https://certpool.com/dockets/20-7605 and https://certpool.com/conferences/2021-06-03 9 (last accessed July 2, 2021). 10 The Court has reviewed the Pima County Superior Court’s electronic docket 11 (“AGAVE”) and takes judicial notice that Petitioner has not yet been resentenced. 12 Similarly, the Court has reviewed the Arizona Supreme Court website and has found no 13 indication that an execution warrant has been issued or that an execution is otherwise 14 imminent. See Ariz. R. Crim. P. 31.23 (directing the Arizona Supreme Court to issue a 15 warrant of execution if the State files a notice indicating the defendant has not initiated or 16 pursued post-conviction or federal habeas proceedings or if the State files a motion at the 17 conclusion of federal habeas corpus and appellate review). 18 Despite the apparent vacatur of his death sentence, Petitioner alleges he is under 19 sentence of death and, “due to his imminent date of execution,” requests: 20 1. Appointment of counsel to represent [him] in [his] Petition for Writ of Habeas Corpus and adequate time to allow counsel to properly review 21 and investigate [his] case and raise all federal constitutional claims 22 arising in his case; 2. An order staying execution; 23 3. Release from confinement based on [his] unconstitutional conviction 24 and sentence; 4. Such other and further relief as the Court deems just and proper. 25 (Doc. 1 at 38–39.) The petition is signed by both Martinez and counsel. 26 III. Discussion 27 When a capital defendant invokes his right to appointed counsel, a federal court may 28 1 exercise its jurisdiction under § 2251 to enter a stay of execution. McFarland v. Scott, 512 2 U.S. 849, 859 (1994). Here, because it is not clear that Petitioner has been resentenced to 3 death, the Court will order Petitioner to show cause why the procedural safeguards—the 4 appointment of counsel and a stay of execution—that follow from a capital sentence should 5 be authorized by the Court. 6 Additionally, before the court may grant habeas relief to a state prisoner, the 7 prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); 8 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The failure to exhaust subjects the 9 petition to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). If a 10 prisoner has a direct appeal or initial petition for post-conviction relief pending in state 11 court, the federal exhaustion requirement is not satisfied. See Sherwood v. Tomkins, 716 12 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 (9th 13 Cir. 1964) (pending post-conviction proceeding); see also Henderson v. Johnson, 710 F.3d 14 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that a district court may not 15 adjudicate a federal habeas petition while a petitioner’s direct state appeal is pending”). 16 The prisoner must await the outcome of the pending state-court challenge before 17 proceeding in federal court, “even where the issue to be challenged in the writ of habeas 18 corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at 634. The pending 19 state-court proceeding could affect Petitioner’s conviction or sentence and, therefore, could 20 ultimately affect or moot these proceedings. See id. 21 Because it is unclear whether Petitioner is still awaiting resentencing in state court, 22 and whether Petitioner has filed his petition prematurely, 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED that, on or before August 16, 2021, Petitioner shall (1) show cause why the Petition should not be dismissed for failure to exhaust, or (2) submit a notice voluntarily dismissing this action. If Petitioner decides to show cause why his Petition 4| should not be dismissed, he should include in his response: (1) the judgment! he is challenging, with conviction case number, date and sentence imposed, and (2) a copy of the warrant of execution he seeks to stay. 7 Dated this 30th day of July, 2021. 8 9

4 WGULAL Honorable Rosemary Mafquez 12 United States District □□□□□ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ' See Burton v. Stewart, 549 U.S. 147, 156 (2007) (“[J]Judgment in a criminal case means sentence. The sentence is the judgment.”); see also Styers v. Ryan, No. CV-12-2332- 27 judg PHX-JAT, 2013 WL 1775981, at *3 (D. Ariz. Apr. 25, 2013). 28 -4-