1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Cory D. Morris, No. CV-17-00926-PHX-DGC
10 Petitioner, ORDER
11 v. DEATH PENALTY CASE
12 Ryan Thornell, et al.,1
13 Respondents. 14 15 Cory Morris is an Arizona death row inmate seeking federal habeas relief. Before 16 the Court is his motion for stay and abeyance. (Doc. 81; see Docs. 82, 83.) He asks the 17 Court to stay this habeas proceeding and hold it in abeyance while he returns to state court 18 to exhaust three claims in his habeas petition related to an alleged violation of his due 19 process right to be sentenced by a jury correctly informed of his ineligibility for parole. 20 (Id.) He also asks the Court to appoint his federal habeas counsel to represent him on his 21 return to state court. (Id. at 21–25.) Respondents oppose a stay but take no position on 22 Morris’s request for authorization of counsel to represent him in state court. (Doc. 82.) 23 I. BACKGROUND 24 On April 12, 2003, Morris’s uncle discovered the decomposing body of Julie 25 Castillo in Morris’s camper. Morris initially explained to police officers that Castillo and 26 1 Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Ryan Thornell, the Director of 27 the Arizona Department of Corrections, Rehabilitation and Reentry, is substituted for 28 former Director David Shinn. 1 four other women whose bodies were found nearby over the previous six months all died 2 of drug overdoses in his camper while he was away. Later, Morris stated that each victim 3 asked him to choke her during sex and that each accidentally died as a result. 4 In 2005, Morris was convicted of the first-degree murders of Barbara Codman, 5 Shanteria Davis, Jade Velasquez, Sharon Noah, and Julie Castillo. State v. Morris, 215 6 Ariz. 324, 332, 160 P.3d 203, 211 (2007). The jury found two aggravators: that Morris 7 had been convicted of a prior serious offense and that he had committed all five murders 8 in an “especially cruel” and “especially heinous or depraved manner.” Id. at 332, 160 P.3d 9 at 211; A.R.S. § 13-703(F)(2), (4), renumbered as A.R.S. § 13-751. 10 The jury found the mitigating evidence was not sufficiently substantial to call for 11 leniency and sentenced Morris to death. Morris, 215 Ariz. at 332, 160 P.3d at 211. The 12 Arizona Supreme Court affirmed Morris’s convictions and sentences in 2007. Id. at 343, 13 160 P.3d at 222. 14 On February 20, 2018, following unsuccessful state post-conviction proceedings, 15 Morris filed his Petition for Writ of Habeas Corpus. (Doc. 21.) In Claim 13 of his petition, 16 Morris seeks relief for a violation of his due process right to be sentenced by a jury correctly 17 informed of his ineligibility for parole under Lynch v. Arizona, 578 U.S. 613 (2016) (per 18 curiam), and Simmons v. South Carolina, 512 U.S. 154 (1994). (Doc. 21 at 251–56.) In 19 Claims 3(B)(1) and 22(D), Morris seeks relief based on the ineffective assistance of trial 20 and appellate counsel in failing to raise the Simmons issue. (See Doc. 21 at 165–69, 298.) 21 Morris concedes these claims were not raised in state court. (Id. at 164, 251, 290.) 22 On September 14, 2022, Morris sought an unopposed motion to stay these 23 proceedings pending the outcome in Cruz v. Arizona, 143 S. Ct. 650 (2023), which the 24 Court granted. (Docs. 73, 74.) On February 22, 2023, the United States Supreme Court 25 decided Cruz, and on May 08, 2023, Morris filed the pending motion. (Doc. 81.) If 26 granted, a stay would allow him to return to state court to exhaust his Simmons-based 27 claims. (Id. at 2.) 28 1 II. APPLICABLE LAW 2 A. Simmons, Lynch, Cruz 3 In Simmons, the United States Supreme Court held that when “a capital defendant’s 4 future dangerousness is at issue, and the only sentencing alternative to death available to 5 the jury is life imprisonment without possibility of parole, due process entitles the 6 defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in 7 arguments by counsel.’” Cruz v. Arizona, 598 U.S. ---, 143 S. Ct. 650, 655 (2023) (quoting 8 Shafer v. South Carolina, 532 U.S. 36, 39 (2001); Kelly v. South Carolina, 534 U.S. 246, 9 248 (2002)). 10 Until 2012, Arizona law permitted imposition of a parole-eligible life sentence for 11 defendants convicted of first-degree murder. See A.R.S. § 13–703(A) (2000), renumbered 12 as A.R.S. § 13–751(A). In 1994, however, Arizona had abolished parole for all felonies 13 committed after 1993. A.R.S § 41–1604.09(I)(1). Therefore, “the only ‘release’ available 14 to capital defendants convicted after 1993 was, and remains, executive clemency.” Cruz, 15 143 S. Ct. at 655. Nonetheless, the Arizona Supreme Court refused to apply Simmons in 16 Arizona on the grounds that Arizona’s sentencing scheme was sufficiently distinct from 17 the one at issue in Simmons. See Cruz, 143 S. Ct. at 655 (discussing history of the 18 application of Simmons in Arizona). The Supreme Court summarily rejected this reasoning 19 in Lynch, holding that “it was fundamental error to conclude that Simmons ‘did not apply’ 20 in Arizona.” Id. at 654 (quoting Lynch, 578 U.S. at 615). 21 In Cruz, the defendant argued at trial and on appeal that under Simmons he should 22 have been allowed to inform the jury that a life sentence in Arizona would be without 23 parole. The trial court and the Arizona Supreme Court held that Arizona’s capital 24 sentencing scheme did not trigger application of Simmons. State v. Cruz, 218 Ariz. 149, 25 181 P.3d 196 (2008). Cruz sought to raise the Simmons issue again, after the United States 26 Supreme Court issued its holding in Lynch, in a petition for post-conviction relief (“PCR”) 27 under Arizona Rule of Criminal Procedure (“Rule”) 32.1(g), which permits a defendant to 28 bring a successive petition if “there has been a significant change in the law that, if 1 applicable to the defendant’s case, would probably overturn the defendant’s judgment or 2 sentence.” The Arizona Supreme Court denied relief, concluding that Lynch was not “a 3 significant change in the law.” State v. Cruz, 251 Ariz. 203, 487 P.3d 991 (2021). The 4 United States Supreme Court disagreed, vacating the Arizona Supreme Court’s judgment 5 and remanding the case. Cruz, 143 S. Ct. at 662. The Court found that Lynch “overruled 6 binding Arizona precedent” and represented a “clear break from the past.” Id. at 658–59. 7 B. Rhines 8 Rhines v. Weber, 544 U.S. 269, 273–77 (2005), authorizes a district court to stay a 9 petition in “limited circumstances” to allow a petitioner to present unexhausted claims to 10 the state court without losing the right to federal habeas review pursuant to the relevant 11 one-year statute of limitations. 12 Under Rhines, “a district court must stay a mixed petition”—that is, a petition 13 containing both exhausted and unexhausted claims—“only if: (1) the petitioner has ‘good 14 cause’ for his failure to exhaust his claims in state court; (2) the unexhausted claims are 15 potentially meritorious; and (3) there is no indication that the petitioner intentionally 16 engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 17 2008) (citing Rhines, 544 U.S. at 278). 18 A claim is exhausted if (1) the petitioner has fairly presented the federal claim to the 19 highest state court with jurisdiction to consider it or (2) no state remedy remains available 20 for the claim. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). The latter form of 21 exhaustion is described as “technical exhaustion” through procedural default. See Coleman 22 v. Thompson, 501 U.S. 722, 732 (1991); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 23 2007); Woodford v. Ngo, 548 U.S. 81, 92 (2006). In Arizona, Rule 32 provides that a 24 petitioner is procedurally barred from relief on any constitutional claim that could have 25 been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.1(a); 32.2(a)(3). A 26 petitioner generally may not return to state court to exhaust a claim unless it falls within 27 the category of claims for which a successive PCR petition is permitted. See Ariz. R. Crim. 28 P. 32.1(b)–(h), 32.2(a) & (b). 1 A Rhines stay would be inappropriate in a federal habeas case if the claims for which 2 a petitioner seeks a stay are technically exhausted through procedural default. See e.g., 3 Armstrong v. Ryan, No. CV-15-00358-TUC-RM, 2017 WL 1152820 (D. Ariz. March 28, 4 2017); White v. Ryan, No. CV-09-2167PHX-FJM-LOA, 2010 WL 1416054, *12 (D. Ariz. 5 March 16, 2010) (“Because the Petition in this case contains claims that are either actually 6 or technically exhausted, it is not a mixed Petition and Rhines does not apply.”). 7 III. ANALYSIS 8 Morris seeks a stay so he can raise Claims 13, 3(B)(1), and 22(D) of his habeas 9 petition in state court. (Doc. 81.) 10 A. Claim 13 11 In Claim 13, Morris alleges that his due process and Eighth Amendment rights were 12 violated when the jury was incorrectly instructed that if given a life sentence, he could be 13 eligible for parole.2 (Doc. 21 at 251.) Morris did not present this claim in state court. (See 14 id.) In their answer to the petition, Respondents argue that this claim is technically 15 exhausted and procedurally defaulted because Morris is barred from returning to state court 16 to exhaust it. (Doc. 27 at 153.) 17 In addressing the motion to stay, Respondents do not dispute that Morris has shown 18 good cause for his failure to exhaust the claim, do not contend that Morris has been 19 intentionally dilatory, and agree with Morris that Cruz may provide “a procedural avenue 20 to exhaust Claim 13 in state court.” (Doc. 82 at 4.) The Court agrees with this analysis 21 and finds that Morris has demonstrated good cause for his failure to exhaust Claim 13 in 22 state court and that he did not engage in dilatory litigation tactics. 23
24 2 In Claim 13, Morris asserts the incorrect jury instruction at issue violated both his due process and Eighth Amendment rights. (See Doc. 21 at 251–56.) Here, Morris seeks to 25 stay his petition and return to state court to exhaust only his due process claim under 26 Simmons, and this is the only portion of the claim this Court here considers. (See Doc. 81 at 9); see also Simmons, 512 U.S. at 162 n. 4 (reserving Eighth Amendment question); id. 27 at 174 (Ginsburg, J., concurring) (narrowly construing holding to due process aspects). 28 1 Respondents also do not dispute that Morris’s future dangerousness was at issue or 2 that he would have been entitled to a Simmons instruction if he had asked for one. (See id. 3 4–5); see also Kelly, 534 U.S. at 252 (future dangerousness is at issue when it is a logical 4 inference from the evidence or the State injects it through closing argument). Nonetheless, 5 Respondents argue Claim 13 is plainly meritless because Morris did not request a parole- 6 ineligibility instruction. (Doc. 82 at 4) (citing State v. Bush, 244 Ariz. 575, 423 P.3d 370, 7 387–88 (2018)). Morris concedes his trial counsel did not request such an instruction. (See 8 Doc. 21 at 166) (citing RT 07/13/05 at 3–4). 9 A claim is potentially meritorious unless “it is perfectly clear that the [petitioner] 10 does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th 11 Cir. 2005); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may 12 be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 13 available in the courts of the State.”); Dixon v. Baker, 847 F.3d 714, 722–23 (2017) (finding 14 claim met second prong of Rhines test because it was not “plainly meritless”); Rhines, 544 15 U.S. at 277 (a stay is inappropriate in federal court to allow claims to be raised in state 16 court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless.”). “In 17 determining whether a claim is ‘plainly meritless,’ principles of comity and federalism 18 demand that the federal court refrain from ruling on the merits of the claim unless ‘it is 19 perfectly clear that the petitioner has no hope of prevailing.’” Dixon, 847 F.3d at 722 20 (quoting Cassett, 406 F.3d at 624). 21 The Court finds that Morris has “no hope of prevailing” on his Simmons claim – it 22 is plainly meritless and will be denied. See Cassett, 406 F.3d at 624; 28 U.S.C. 23 § 2254(b)(2). The Arizona Supreme Court’s decision in Bush explains the due process 24 holding of Simmons and validates Respondents’ argument that Morris has failed to present 25 a colorable claim. 26 Parsing the plurality opinion in Simmons, Bush found Justice O’Connor’s opinion, 27 separately concurring in the judgment with Chief Justice Rehnquist and Justice Kennedy, 28 represented the “‘narrowest ground[]’ that ‘may be viewed as [the] position taken by’ the 1 Court on the issue of what due process requires in this context.’” Bush, 244 Ariz. at 592, 2 423 P.3d at 387 (quoting Marks v. United States, 430 U.S 188, 193 (1977) (“When a 3 fragmented Court decides a case and no single rationale explaining the result enjoys the 4 assent of five Justices, the holding of the Court may be viewed as that position taken by 5 those Members who concurred in the judgments on the narrowest grounds . . . .”) (internal 6 quotation omitted). Bush held that “the due process right under Simmons merely affords a 7 parole-ineligible capital defendant the right to ‘rebut the State’s case’ (if future 8 dangerousness is at issue) by informing the jury that ‘he will never be released from prison’ 9 if sentenced to life.” Id. (quoting Simmons, 512 U.S. at 177 (O’Connor, J., concurring in 10 the judgment)); see also O’Dell v. Netherland, 521 U.S. 151, 159 (1997) (noting that in 11 Simmons “there was no opinion for the Court” and that four Justices merely “concluded 12 that the Due Process Clause required allowing the defendant to inform the jury—through 13 argument or instruction—of his parole ineligibility in the face of a prosecution’s future 14 dangerousness argument”). Morris cites no controlling authority finding Simmons error 15 where a defendant has failed to request a parole ineligibility instruction in response to the 16 State’s assertion of future dangerousness. 17 In Bush, the Arizona Supreme Court noted that in every case in which either it or 18 the United States Supreme Court has found reversible Simmons error, the trial court had 19 “either rejected the defendant’s proposed jury instruction regarding his ineligibility for 20 parole, prevented defense counsel ‘from saying anything to the jury about parole 21 ineligibility’ or both.” Id. at 593, 423 P.3d at 388 (citing Simmons, 512 U.S. at 175 22 (Ginsburg, J., concurring); Lynch, 578 U.S. at 614 (both); Kelly, 534 U.S. at 249 (refusal 23 to inform); Shafer, 532 U.S. at 41–46 (both); State v. Hulsey, 243 Ariz. 367, 394, 408 P.3d 24 408, 435 (both); State v. Rushing, 243 Ariz. 212, 221, 404 P.3d 240, 249 (2017) (refusal to 25 inform); State v. Escalante-Orozco, 241 Ariz. 254, 284, 386 P.3d 798, 828 (2017) (refusal 26 to inform)). The Bush court concluded that relief under Simmons was foreclosed because, 27 “[u]nlike in the aforementioned cases” in which courts found reversible Simmons error, 28 “the trial court neither refused to instruct, nor prevented Bush from informing, the jury 1 regarding his parole ineligibility.” Id. 2 Morris asserts that the court in Bush had no occasion to determine how failing to 3 request a parole ineligibility instruction would operate in the context of the change in law 4 wrought by Lynch and Cruz. In Bush, however, the court acknowledged that the trial 5 court’s jury instruction, referring to the possibility of release after 35 years, was 6 “apparently . . . incorrect” under the Supreme Court’s opinion in Lynch. Bush, 244 Ariz. 7 at 592, 423 P.3d at 387. The court nonetheless found Simmons relief foreclosed by the 8 defendant’s failure to request a Simmons instruction. Although, as Respondents 9 acknowledge, Cruz may provide an avenue for Morris to seek to raise the claim in state 10 court, Morris fails to demonstrate how either Lynch or Cruz calls into question the Bush 11 court’s Simmons analysis. Stated differently, while Cruz may establish a route for Morris 12 to actually exhaust the claim in state court, Cruz does not speak to the merits of Morris’s 13 Simmons claim. 14 Morris contends that Bush is distinguishable because it provided a vague instruction 15 about the availability of “release after 35 years,” Bush, 244 Ariz. at 590–91, 423 P.3d at 16 385–86, presumably invoking the possibility of executive clemency, which at that time the 17 Arizona Supreme Court incorrectly thought distinguished its sentencing and parole 18 schemes from those at issue in Simmons. See Lynch, 578 U.S. at 615. Morris asserts, in 19 contrast, that his jury was affirmatively and incorrectly instructed that he could receive 20 “parole.” (Doc. 83 at 4.) At the aggravation phase of Morris’s trial, the court instructed: 21 If you do not unanimously find the state has proved at least one aggravating factor, your jury service will end and the Court will sentence the defendant 22 either to natural life imprisonment without the possibility of parole or life 23 imprisonment without possibility of parole until at least 25 years have been served. 24 (ROA 153 at 5; RT 7/12/05 at 18.) Subsequently, during the penalty phase, the trial court 25 instructed the jurors: 26 If your verdict is that the Defendant should be sentenced to life, the 27 Defendant will not be sentenced to death, and the Court will sentence the 28 Defendant to either life without the possibility of release until 25 calendar 1 years in prison are served, or “natural life,” which means the defendant would never be released from prison. 2 3 (ROA 163 at 9; ROA 169 at 7; RT 7/14/05 at 10; RT 7/18/05 at 96–97.)3 As discussed 4 above, these instructions were an incorrect statement of the law regarding parole eligibility. 5 Thus, Morris asserts, even assuming the Arizona Supreme Court’s interpretation in Bush 6 would control how it would resolve a similar case under Rule 32.1(g), it does not indicate 7 how the Arizona Supreme Court would apply Simmons in a case like Morris’s, where the 8 trial court affirmatively “misle[]d the jury as to its role in the sentencing process.” (Doc. 83 9 at 5) (quoting Romano v. Oklahoma, 512 U.S. 1, 9 (1994)).4 10 The Court finds no meaningful distinction between the incorrect instructions 11 provided in Bush and the incorrect instructions the trial court gave here. In State v. Riley, 12 248 Ariz. 154, 195, 459 P.3d 66, 107 (2020), which was decided after Bush, the trial court 13 informed the jury that Riley could be “sentenced to life in prison with the possibility of 14 release in 25 years.” The Arizona Supreme Court nonetheless reiterated that, after Bush, 15 no Simmons error occurs when counsel is afforded the opportunity to object to the jury 16 instructions but declines. Id. 17 In contrast, the Arizona Supreme Court in Hulsey examined the record and, finding 18 no indication that Hulsey waived any objection to a jury instruction mentioning release or 19 wanted future dangerousness to go unrebutted, proceeded to consider the merits of 20 Hulsey’s Simmons claim. Hulsey, 243 Ariz. at 398, 408 P.3d at 437 (2018). 21 Morris points to the State’s admission, in its supplemental Cruz brief on remand, 22 23 3 Indexed documents from the record on appeal are designated “ROA” followed by the docket number. “RT” followed by the relevant date and page number refers to the reporter’s 24 transcripts of Morris’s trial.
25 4 The portion of Romano quoted by Morris refers to a so-called “Caldwell violation,” 26 established by demonstrating that a trial judge’s instructions violate the Eighth Amendment by leading the sentencer to believe that responsibility for determining the appropriateness 27 of a death sentence rests elsewhere. See Caldwell v. Mississippi, 472 U.S. 320, 328–39 28 (1985). As previously discussed, supra, n.4, Morris’s motion to stay does not address the Eighth Amendment violation he asserted in Claim 13. 1 that “[u]nlike historical Simmons cases—where the jury instructions are potentially 2 misleading because they omit mention of parole ineligibility—Cruz’s jury,” like Morris’s, 3 “was affirmatively and incorrectly instructed that Cruz was eligible for parole. Thus, even 4 more than in Simmons, the instruction here surely left the jury with what Simmons called a 5 ‘grievous misperception.’” (Doc. 83 at 4–5) (citing Doc. 81-2, Ex. A at 1). But the degree 6 of misperception is not a factor in consideration of a Simmons claim. The Simmons due 7 process right is implicated any time the State calls into question, implicitly or explicitly, a 8 defendant’s future dangerousness. In that event, the violation is established by showing 9 that defendant’s counsel was prevented from informing the jury that a defendant was not 10 parole eligible or that the trial court refused to give a parole ineligibility instruction. See 11 Cruz, 143 S. Ct. at 655 (explaining that “due process entitles the defendant to inform the 12 jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.”) 13 (internal quotation omitted). 14 Alternatively, Morris asserts that even if Bush controls in the Rule 32.1(g) context, 15 and its procedural requirements extend to cases with falsely instructed juries, Respondents 16 have failed to address the argument that Bush was “implicitly complied with” in this case 17 because the State moved to “preclude evidence or argument claiming there is no possibility 18 of parole under Arizona law” and requested that the jury “be advised of the three possible 19 sentences facing [Morris].” (Doc. 83 at 5) (quoting ROA 76). Morris apparently did not 20 object, and the trial court did not formally rule on the motion. Yet Morris argues this State 21 action makes his case less like Bush and more like Hulsey, which found a “trial court’s 22 order precluding discussion of parole ineligibility was error and not harmless.” (Doc. 83 23 at 6) (quoting Hulsey, 243 Ariz. at 395, 408 P.3d at 436). 24 Unlike Morris, however, Hulsey preserved his Simmons argument by, among other 25 things, objecting to the instructions and asking the court to delete any mention of the 26 “possibility of release.” Hulsey, 243 Ariz. at 394, 408 P.3d at 435. Morris points the Court 27 to no controlling authority that recognizes a Simmons due process claim as anything more 28 than a waivable right of “opportunity” or “rebuttal.” See O’Dell, 521 U.S. at 167 1 (describing Simmons as a “narrow right of rebuttal”); Townes v. Murray, 68 F.3d 840, 850 2 (4th Cir. 1995) (“[T]he fact that a jury was not informed of the defendant’s parole 3 ineligibility would not violate the defendant’s due process rights, as recognized by 4 Simmons, if that lack of information was due to the defendant’s own inaction.”). But see 5 State v. Laney, 367 S.C. 639, 645–46, 627 S.E.2d 726, 730 (S.C. 2006) (holding that when 6 the requirements of Simmons are satisfied, “the trial judge shall charge the jury, whether 7 requested or not, that life imprisonment means until the death of the defendant without the 8 possibility of parole”). 9 Morris asserts that the United States Supreme Court’s recent remand of six cases 10 raising Simmons-based due process claims, including four where the petitioners never 11 sought a parole ineligibility instruction in the manner noted in Bush, calls into question that 12 court’s interpretation of Simmons. (See Doc. 83 at 3) (citing Burns v. Arizona, 143 S. Ct. 13 997, 998) (Mar. 6, 2023) (mem.)). The Court disagrees. The narrow issue presented in 14 Burns was “the same question presented” in Cruz—[w]hether the Arizona Supreme Court’s 15 holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief 16 is an adequate and independent state-law ground for the judgment, see Burns v. Arizona, 17 Joint Petition for Writ of Certiorari, No. 21-847 (U.S. Oct. 4, 2021)—and does not instruct 18 this Court on the merits of the Simmons claim presented here. See e.g., Sakamoto v. Duty 19 Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985) (“[U]nstated assumptions on 20 non-litigated issues are not precedential holdings binding future decisions.”). 21 In sum, the Court finds Morris’s Simmons claim is plainly meritless because Morris 22 “has not shown that he was deprived of the right to inform the jury of his parole 23 ineligibility.” See Riley, 244 Ariz. at 593, 423 P.3d at 388. Accordingly, the portion of 24 Claim 13 alleging a Simmons violation is denied as meritless. See 28 U.S.C. § 2254(b)(2) 25 (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding 26 the failure of the applicant to exhaust the remedies available in the courts of the State.”); 27 Rhines, 544 U.S. at 277 (a stay is inappropriate in federal court to allow claims to be raised 28 in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”); 1 Cassett, 406 F.3d at 623–24 (holding that a federal court may deny an unexhausted petition 2 on the merits when the petition does not raise a colorable federal claim). 3 B. Claims 3(B)(1) and 22(D) 4 Under Rhines, and in light of the Court’s denial of Claim 13, the Court must 5 determine whether Morris’s habeas petition remains mixed. At issue are two ineffective 6 assistance of counsel (IAC) claims – Claims 3(B)(1), and 22(D). In Claim 3(B)(1), Morris 7 alleges that trial counsel was ineffective for failing to object to the trial court’s instruction 8 as to Morris’s parole eligibility. (Doc. 21 at 165–69.) In Claim 22(D), he alleges that 9 appellate counsel was ineffective for failing to challenge the jury instruction regarding 10 Morris’s eligibility for parole. (Doc. 21 at 298.) Though Morris raised other allegations 11 of ineffectiveness in state court PCR proceedings, he did not raise these Simmons-related 12 claims in his PCR. (See ROA 307 at 3–56.) 13 If Morris were to return to state court and attempt to exhaust these ineffective 14 assistance claims, the claims would be found waived under Rule 32.2(a) because they do 15 not fall within an exception to preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(b)–(h); see 16 also State v. Spreitz, 202 Ariz. 1, 2, 39 P.3d 525, 526 (2002) (“Our basic rule is that where 17 ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 18 post-conviction relief proceeding, subsequent claims of ineffective assistance will be 19 deemed waived and precluded.”). Therefore, Claims 3(B)(1) and 22(D) are “technically” 20 exhausted but procedurally defaulted because Morris no longer has an available state 21 remedy. Coleman, 501 U.S. at 732, 735 n. 1. 22 Morris notes that Rule 32.2(a)(3) does not apply to claims that “affected a right of 23 constitutional magnitude” if the petitioner did not personally waive the claim. (Doc. 83 at 24 6) (citing Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002)). Morris’s 25 ineffective assistance of counsel claims, however, do not fall within the limited framework 26 of claims requiring a knowing, voluntary, and intelligent waiver before the application of 27 a preclusion finding. See Ariz. Rule Crim. Proc. 32.2(a)(3) cmt. (West 2004) (explaining 28 that most claims of trial error do not require a personal waiver); Smith, 202 Ariz. at 449, 1 46 P.3d at 1070 (identifying the right to counsel, right to a jury trial, and right to a 12- 2 person jury under the Arizona Constitution as the type of claims that require personal 3 waiver). Additionally, if different ineffective assistance allegations are raised in successive 4 petitions, the claim in the later petition will be precluded without a review of the 5 constitutional magnitude of the claim. See Smith, 202 Ariz. at 450, 46 P.3d at 1071 (“The 6 ground of ineffective assistance of counsel cannot be raised repeatedly.”) In his PCR 7 petition, Morris raised several other claims of ineffective assistance of counsel. (See ROA 8 307 at 3–56.) Because a successive petition would not be Morris’s first petition raising 9 claims of ineffective assistance of counsel, the Court need not address the nature of the 10 right affected by counsel’s ineffective performance. See id. Morris’s successive claims of 11 ineffective assistance, such as Claims 3(B)(1) and 22(D), are necessarily precluded. See 12 Armstrong v. Ryan, No. CV-15-00358-TUC-RM, 2017 WL 1152820, at *6 (D. Ariz. Mar. 13 28, 2017) (“Because Petitioner would not be able to exhaust Claim 1(A) in a successive 14 state petition for post-conviction relief, Petitioner’s IAC claim is ‘technically’ exhausted, 15 and a Rhines stay would be inappropriate.”); see also Lopez v. Schriro, No. CV-98-0072- 16 PHX-SMM, 2008 WL 2783282, at *9 (D. Ariz. July 15, 2008) (“[I]f additional 17 ineffectiveness allegations are raised in a successive petition, the claims in the later petition 18 necessarily will be precluded.”), amended in part, 2008 WL 4219079 (D. Ariz. Sept. 4, 19 2008), aff’d sub nom. Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011) and overruled on other 20 grounds by McKinney v. Ryan, 813 F.3d 798, 818 (2015). 21 Morris also asserts that “the procedural rules regarding successive or untimely 22 postconviction applications are inconsistently applied to capital cases, and merits review is 23 often available.” (Doc. 81 at 18.) This argument is unavailing where two of the cases cited 24 by Morris involved timeliness issues5, and in the third the trial court found petitioner’s IAC 25 claim raised in a second petition precluded because he had previously asserted the 26 5 State v. Prince, No. 1 CA-CR 95-0413-PR, 1996 WL 91519 (Ariz. Ct. App. Mar. 5, 27 1996), review denied and order depublished (Sept. 17, 1996); id. at *7 (Thompson, J., 28 dissenting); (Doc. 60-2, Ex. C at 2 (Minute Entry, State v. Lambright, No. CR- 05669 (Pima Cnty. Super. Ct. Apr. 5, 1993). 1 ineffectiveness claim in his first PCR.6 Even if the cases demonstrated inconsistency in 2 Arizona’s timeliness rulings, they do not call into doubt Arizona’s preclusionary rules. The 3 Ninth Circuit has held that Rule 32.2(a)(3) “is independent of federal law and has been 4 regularly and consistently applied, so it is adequate to bar federal review of a claim.” Jones 5 v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012). 6 Morris asserts he may obtain merits review in state court of his unexhausted IAC 7 claims through the Arizona Supreme Court’s original habeas jurisdiction, see Ariz.Const. 8 art. II, § 14 (“The privilege of the writ of habeas corpus shall not be suspended by the 9 authorities of the state.”); see also Ariz. R Crim. P. 32.3 cmt. (noting that Rule 32 “does 10 not restrict the scope of the writ of habeas corpus.”). Morris cites no authority, and the 11 Court is aware of none, demonstrating the availability of a writ of habeas corpus to address 12 claims of ineffective assistance of counsel. In Arizona, “the writ of habeas corpus may be 13 used only to review matters affecting a court’s jurisdiction.” In re Oppenheimer, 95 Ariz. 14 292, 297, 389 P.2d 696, 700 (1964). Thus, “[t]he writ of habeas corpus is not the 15 appropriate remedy to review irregularities or mistakes in a lower court unless they pertain 16 to jurisdiction.” State v. Court of Appeals, 101 Ariz. 166, 168, 416 P.2d 599, 601 (1966). 17 Rule 32.3(b), provides: “If a court receives any type of application or request for relief— 18 however titled—that challenges the validity of the defendant’s conviction or sentence 19 following a trial, it must treat the application as a petition for post-conviction relief.” See 20 also A.R.S. § 13-4233 (if defendant applies for writ of habeas corpus attacking validity of 21 conviction or sentence, court shall treat it as petition for post-conviction relief). 22 Next, citing State v. Bennett, 213 Ariz. 562, 146 P.3d 63 (2006), Morris argues that 23 the state PCR court’s removal of the lawyer who filed Morris’s PCR petition, based on a 24 conflict of interest that impaired her ability to assert claims challenging trial counsel’s 25 performance, allows Morris to file a successor petition raising any colorable IAC claims 26 she failed to preserve. (Doc. 83 at 19) (citing ROA 419, 420). In Bennett, the Court 27 concluded that where appellate counsel represented the petitioner in her first PCR, a second 28 6 Williams v. Schriro, 423 F. Supp. 2d 994, 1000 (D. Ariz. 2006). 1 PCR petition was the first proceeding in which she could raise the ineffective assistance of 2 appellate counsel argument, and therefore Rule 32.2(a)(3) did not preclude an ineffective 3 assistance of appellate counsel claim. Bennett, 213 Ariz. at 566, 146 P.3d at 67. What 4 Morris does not address, however, is that the court in his case granted him permission to 5 amend his petition to include new IAC claims after his first PCR counsel was removed and 6 new counsel was appointed. (ROA 437.) Morris fails to show how he was still unable to 7 raise a claim alleging the ineffectiveness of trial counsel for failure to raise a Simmons 8 claim. 9 Relying on Fitzgerald v. Myers, 243 Ariz. 84, 402 P.3d 442, (2017), Morris further 10 contends that his incompetence during state PCR proceedings may constitute cause to 11 excuse an otherwise procedurally barred claim. (Doc. 81 at 20.) Fitzgerald does not 12 support this contention. In Fitzgerald, the Arizona Supreme Court held that there is no 13 right to competency in PCR proceedings under Arizona Statute or Rule. Fitzgerald, 243 14 Ariz. at 86, 402 P.3d at 445. The Arizona Supreme Court did not address the question of 15 whether a petitioner has a due process right to competency in PCR proceedings because 16 the issue was not properly raised. Id. at 92, 402 P.3d at 451. The court recognized that 17 sometimes “a capital defendant’s input and participation regarding a particular Rule 32 18 claim are needed and perhaps imperative.” Id. at 92. Morris asserts that evidence that he 19 was incompetent throughout state court proceedings, and that his counsel were ineffective 20 for failing to discover his incompetency, would entitle him to merits review of his IAC 21 claims regardless of state procedural bars. (Doc. 81 at 20.) The Court is not convinced 22 that this is the type of Rule 32 claim the Arizona Supreme Court was contemplating in 23 Bennett. Even if Morris was incompetent during state court proceedings, he has failed to 24 argue, much less show, that his “input and participation” regarding his Simmons IAC 25 claims were necessary or imperative. 26 Finally, the Court addresses Morris’s argument that this Court should allow the 27 Arizona courts to consider adopting a Martinez-like exception for IAC claims defaulted 28 1 due to previous PCR counsel’s deficient performance.7 (Doc. 81 at 20.) 2 In support, Morris cites Pandeli v. Shinn, No. CV-17-01657-PHX-JJT, 2022 WL 3 16855196, at *4–5 (D. Ariz. Nov. 10, 2022). Pandeli successfully argued for a stay and 4 abeyance of his petition in order to return to state court and attempt to exhaust an IAC 5 claim. Pandeli is distinguishable, however, because the Respondents in that case conceded 6 the habeas petition was mixed. 7 In contrast, Respondents argue that Claim 3(B)(1) is technically exhausted (Doc. 2 8 at 8.), making Pandeli inapposite. See Coleman, 501 U.S. at 732 (“A habeas petitioner 9 who has defaulted his federal claims in state court meets the technical requirements for 10 exhaustion; there are no state remedies any longer ‘available’ to him.”); Smith, 510 F.3d at 11 1139 (observing that if state court where petitioner would be required to present the claims 12 would find the claims procedurally barred, petitioner has technically exhausted the claims 13 through procedural default). As a result, Morris is not entitled to a Rhines stay to exhaust 14 Claim 3(B)(1).8 See King v. Ryan, 564 F.3d 1133, 1139–40 (9th Cir. 2009) (explaining 15 that the Rhines exception to the total exhaustion rule carved out an exception allowing 16 mixed petitions to remain pending in federal court under limited circumstances). 17 Morris asserts that after the Supreme Court’s recent decision in Shinn v. Ramirez, 18 142 S. Ct. 1718 (2022), “actual rather than technical exhaustion is now a necessary step for 19 petitioners to obtain the benefits of Martinez.” (Doc. 81 at 21.) Actual exhaustion is 20 necessary, Morris contends, to afford “States ‘an initial opportunity to pass upon and 21 correct alleged violations of prisoners’ federal rights[.]’” Ramirez, 142 S. Ct. at 1732 22 (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam)); see also Rhines, 544 23 7 In addition to the Simmons-related IAC claim, Claim 3(B)(1), Morris also argues the 24 Court should stay his case to permit him to exhaust several other IAC claims (Claims 1(D), 4, 5(B)) and an ineffective assistance of postconviction counsel claim (Claim 48). The 25 Court denies this request for the same reasons it denies the motion to stay Claim 3(B)(1). 26 8 The Martinez exception does not apply to claims of ineffective assistance of appellate 27 counsel, see Davila v. Davis, 582 U.S. 521, 525, 529 (2017), and therefore the Court 28 considers only Claim (3)(B)(1) in this part of the discussion. 1 U.S. at 273 (“[T]he interests of comity and federalism dictate that state courts must have 2 the first opportunity to decide a petitioner’s claims.”). Morris argues that Ramirez, relying 3 on principles of comity and federalism, endorsed petitioners returning to state court to 4 exhaust their claims. See, e.g., 142 S. Ct. at 1732 (citing Rose v. Lundy, 455 U.S. 509, 520 5 (1982)) (noting “a federal court is not required to automatically deny unexhausted or 6 procedurally defaulted claims” and that a “prisoner might have an opportunity to return to 7 state court to adjudicate the claim.”). 8 In support of this assertion, Morris calls on Guevara-Pontifes v. Baker, No. 3:20- 9 cv-00652-ART-CSD, 2022 WL 4448259 (D. Nev. September 23, 2022), a case cited by 10 the Court in Pandeli. The petitioner sought a stay to exhaust a claim of ineffective 11 assistance of trial counsel, arguing, as Morris does here, that postconviction counsel’s 12 ineffectiveness in failing to raise the claim constituted good cause under Rhines. Id. at *3. 13 The court held that Ramirez did not “concern the good cause requirements for a Rhines 14 stay” and did not “foreclose a petitioner from demonstrating good cause for a stay based 15 on post-conviction counsel’s failure to raise an unexhausted claim in state court.” Id. at 16 *4. The court also rejected the argument that a stay would be futile based on Nevada’s 17 procedural default bars. Id. at *4–5 (citing Brown v. McDaniel, 130 Nev. 565, 331 P.3d 18 867 (2014)). The court explained that if the stay were granted the petitioner “can argue to 19 the Nevada Supreme Court, that in light of the Supreme Court’s decision in Ramirez, it 20 should overrule Brown and permit the use of the principles set forth in Martinez for 21 purposes of overcoming state procedural bars.” Id. at *5. The court granted the Rhines 22 stay, finding that the allegation of ineffective assistance of postconviction counsel 23 constituted “good cause.” Id. at *3. 24 Martinez has no relevance to an Arizona Rule 32 proceeding. See State v. 25 Escareno–Meraz, 232 Ariz. 586, 587, 307 P.3d 1013, 1014 (App. 2013) (“Martinez does 26 not alter established Arizona law.”). A claim that Rule 32 counsel was ineffective is not a 27 cognizable ground for relief in a subsequent Rule 32 proceeding. See id. “Nor can the 28 underlying claim of ineffective assistance of trial counsel be directly raised in an untimely 1 and successive post-conviction proceeding. Ariz. R. Crim. P. 32.4(a).” State v. Perez, No. 2 1 CA-CR 14-0592 PRPC, 2016 WL 6301101, at *1 (Ariz. Ct. App. Oct. 27, 2016). 3 Morris’s claim that Arizona courts will reexamine their procedural rules in light of 4 Ramirez is similarly meritless. In Ramirez, the Supreme Court held that in adjudicating a 5 Martinez claim, “a federal habeas court may not conduct an evidentiary hearing or 6 otherwise consider evidence beyond the state-court record based on ineffective assistance 7 of state post-conviction counsel” unless the petitioner satisfies the stringent requirements 8 of 28 U.S.C. § 2254(e)(2). 142 S. Ct. at 1734. Until Ramirez, in other words, petitioners 9 like Morris had the opportunity to present new evidence in federal court pursuant to 10 Martinez. Ramirez had no effect on state post-conviction proceedings or preclusion rules, 11 nor did it render any of Morris’s claims unexhausted rather than technically exhausted. 12 Because Claim 13 is denied as plainly meritless and Claims 3(B)(1) and 22(D) are 13 technically exhausted, the petition is not mixed, and Rhines is not applicable. Morris is not 14 entitled to a stay. Further, because the Court has now considered and rejected Morris’s 15 motion to stay based on the merits of Claim 13 and the technical exhaustion of his related 16 IAC claims, the Court lifts the stay previously granted pending the decision of the Arizona 17 Supreme Court on remand of the Cruz decision. (See Doc. 77.) 18 IV. APPOINTMENT OF COUNSEL 19 Morris asks the Court to authorize the Federal Public Defender’s (“FPD”) office to 20 represent him in state court. The Criminal Justice Act provides for appointed counsel to 21 represent their client in “other appropriate motions and procedures.” 18 U.S.C. § 3599(e). 22 The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009), holding 23 that the statute “authorizes federally appointed counsel to represent their clients in state 24 clemency proceedings and entitles them to compensation for that representation.” Id. at 25 194. The Court explained that “subsection (a)(2) triggers the appointment of counsel for 26 habeas petitioners, and subsection (e) governs the scope of appointed counsel’s duties.” 27 Id. at 185. The Court also noted, however, that appointed counsel is not expected to provide 28 each of the services enumerated in section (e) for every client. Rather, “counsel’s 1 representation includes only those judicial proceedings transpiring ‘subsequent’ to her 2 appointment.” Id. at 188. 3 Harbison addressed the concern that under the Court’s interpretation of § 3599, 4 federally appointed counsel would be required to represent their clients in state retrial or 5 state habeas proceedings that occur after counsel’s appointment because such proceedings 6 are also “available post-conviction process.” Id. The Court explained that § 3599(e) does 7 not apply to those proceedings because they are not “properly understood as a ‘subsequent 8 stage’ of judicial proceedings but rather as the commencement of new judicial 9 proceedings.” Id. at 189. 10 As to state post-conviction proceedings, the Court noted, “State habeas is not a stage 11 ‘subsequent’ to federal habeas. . . . That state postconviction litigation sometimes follows 12 the initiation of federal habeas because a petitioner has failed to exhaust does not change 13 the order of proceedings contemplated by the statute.” Id. at 189–90; see Irick v. Bell, 636 14 F.3d 289, 292 (6th Cir. 2011); Lugo v. Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 15 (11th Cir. 2014), cert. denied sub nom. Lugo v. Jones, 574 U.S. 1125 (2015) (explaining 16 “a state prisoner is not entitled, as a matter of statutory right, to have federally paid counsel 17 assist him in the pursuit and exhaustion of his state postconviction remedies, including the 18 filings of motions for state collateral relief. . . .”). 19 Nevertheless, the Court has discretion to appoint federal counsel to represent Morris 20 in state court. In Harbison the Supreme Court noted that “a district court may determine 21 on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the 22 course of her federal habeas representation.” 556 U.S. at 190 n.7. 23 Here, however, the Court has determined that Morris is not entitled to a Rhines stay.9 24 Based on that determination, together with the Harbison Court’s discussion of the 25 parameters of § 3599(e), the Court finds it is not appropriate to authorize the FPD to 26
27 9 Because the Court denies Morris’s request for a Rhines stay and his motion for 28 authorization to represent him in state court, it does not consider Morris’s separate request to permit counsel to raise Morris’s competency claims in state court. represent Morris in state court.!° 2\| V. CONCLUSION 3 Morris has not demonstrated that a Rhines stay is warranted. Claim 13 is plainly meritless and will be denied. Morris’s Simmons-related IAC claims are technically 5 || exhausted and his petition therefore is not mixed. “The point of a Rhines stay is to allow a 6|| federal habeas petitioner an opportunity to present unexhausted claims in state court.” 7\| Pritchett v. Gentry, No. 217CVO1694JADDJA, 2022 WL 4366996, at *4 (D. Nev. Sept. 8 || 21, 2022); see Anderson v. Jennings, No. 1:19-CV-00014 JAR, 2022 WL 17480616, at *3 9|| (E.D. Mo. Nov. 21, 2022). In addition, granting Morris’s request for a Rhines stay would 10 || be contrary to the Supreme Court’s directive that such stays should be granted only in 11 || limited circumstances and that courts must be ‘mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state court 13 || before filing in federal court.’” Jd. (quoting Rhines, 544 U.S. at 276-77). 14 IT ORDERED denying Claim 13 (in part), denying Morris’s Motion for a Stay 15 || and Abeyance (Doc. 81), and denying Morris’s request for federal habeas counsel to || represent him in state court (id.). 17 IT IF FURTHER ORDERED lifting the stay previously granted by the Court in 18 || Doc. 77 and taking Morris’s habeas petition and request for evidentiary development under 19 || advisement. 20 Dated this 28th day of June, 2023. 21 22 ped 6 Cre phtl 23 David G. Campbell A Senior United States District Judge 10 In support of his request for authorization, Morris refers the Court to Ex. C, Judge Claire 26|| WV. Eagan, Memorandum re Use of Defender Services Appropriated Funds by Federal Appointed Counsel for State Court Appearances in Capital Habeas Corpus Cases (Dec. 9, 2010)). Notably, Judge Eagan states that the memorandum is intended to address the issue 28 || of expending federal funds in state court once a determination has already been made that it is permissible for a claim to be remanded to state court for exhaustion. Jd. at 2.
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