Spears v. Shinn

• Court: District Court, D. Arizona
• Decided: February 12, 2024
• Docket: 2:00-cv-01051
• Status: Unknown

Opinion

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

9 Anthony Marshall Spears, No. CV-00-01051-PHX-SMM

10 Petitioner, DEATH PENALTY CASE

11 v. ORDER

12 Ryan Thornell, et al.,

13 Respondents.

14 On remand from the Ninth Circuit Court of Appeals, this Court has been directed to 15 address two sets of Petitioner Anthony Spears’s habeas claims. (Doc. 140.) First, the Court 16 is to consider whether, in light of intervening law, including Martinez v. Ryan, 566 U.S. 1 17 (2012), relief is warranted on Claim 15(c) (alleging ineffective assistance of trial counsel— 18 mitigation) and whether reconsideration is warranted with respect to Claim 15(d) 19 (ineffective assistance of trial counsel—pecuniary gain aggravating circumstance). Next, 20 the Court is to consider whether, in light of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) 21 (en banc), relief is warranted on Claim 12 (causal nexus error at sentencing by the trial 22 court) or Claim 14 (causal nexus error by the Arizona Supreme Court). (Doc. 140.) Briefing 23 on these issues is complete. (Docs. 163, 169, 172.) In his supplemental brief addressing 24 Martinez and McKinney, Spears also requested evidentiary development, which 25 Respondents opposed. (Docs. 163, 169.) 26 While those issues were pending before the Court, the United States Supreme Court 27 decided Shinn v. Ramirez, 596 U.S. 366 (2022). This Court granted Spears’ request for 28 1 supplemental briefing addressing the impact of Ramirez on the remanded claims. (Doc. 2 191.) In his brief, Spears requests a stay while he pursues litigation of the claims in state 3 court. (Doc. 195.) Respondents oppose a stay.1 (Doc. 198.) 4 BACKGROUND 5 In 1992, Spears was convicted of first-degree murder and sentenced to death. The 6 following facts are taken from Arizona Supreme Court opinion affirming the conviction 7 and sentence. State v. Spears, 184 Ariz. 277, 282–83, 908 P.2d 1062, 1067–68 (1996). 8 On January 2, 1992, Spears flew from San Diego to Phoenix, using a one-way ticket 9 purchased by the victim, Jeanette. Spears brought his 9mm Beretta handgun with him. 10 Jeanette obtained $2200 in cash advances and had her truck title notarized, making it 11 readily transferable. 12 On January 4, Spears drove back to California in Jeanette’s truck. He lied to his 13 live-in girlfriend Joann about where he obtained the vehicle. Spears also had guns 14 belonging to Jeanette and almost $1000 in cash. 15 Jeanette’s body was found on January 19. She died from a gunshot wound to the 16 back of her head with a medium or large caliber bullet. On January 30, police discovered 17 a 9mm shell casing at the scene. Forensic analysis linked the shell to Spears’s 9mm Beretta. 18 San Diego deputies took Spears into custody on January 25. He was driving 19 Jeanette’s truck. In the glove compartment, they found the title that Jeanette had notarized 20 on January 3. On the back of the document Spears’s name was written in the space 21 designated for the purchaser to whom the title was being reassigned. 22 Spears, who denied any involvement in the crimes, was found guilty of first-degree 23 murder and theft. Following an aggravation/mitigation hearing, the trial judge found one 24 aggravating factor—that Spears had killed Jeanette for pecuniary gain, under A.R.S. § 13- 25 26 1 In September 2023, the state court granted Spears’ motion to amend his successive petition for post-conviction relief. (See Doc. 202, Ex. 1.) Spears’s motion to amend in state 27 court was filed the day after he filed the reply to his supplemental Ramirez brief with the request to stay. He notified this court on September 22, 2023, but has not supplemented his 28 stay request based on the actions of the state court. The impact, if any, of the amended second PCR has not been raised and the Court does not address it. 1 703(F)(5). In mitigation Spears presented the testimony of a psychologist, who detailed the 2 abuse Spears suffered at the hands of his parents and diagnosed him with childhood post- 3 traumatic stress disorder and depression. Lay witnesses, including Spears’s mother, also 4 testified about his abusive childhood, especially the mistreatment by his father, and about 5 Spears’s positive qualities. 6 The judge, however, found this mitigation insufficiently substantial to call for 7 leniency and sentenced Spears to death. The Arizona Supreme Court affirmed Spears’s 8 conviction and death sentence on direct appeal. Spears filed a post-conviction relief 9 (“PCR”) petition, which the trial court denied without an evidentiary hearing. The Arizona 10 Supreme Court denied review. 11 In 2000, Spears filed a petition for writ of habeas corpus in this Court. (Doc. 1.) He 12 filed an amended petition in July 2003. (Doc. 79.) The Court denied relief (Docs. 120, 134) 13 and Spears appealed (Doc. 136).2 More than two years later, in April 2012, Spears moved 14 to remand his case to this Court to reconsider several claims under Martinez v. Ryan. (Id., 15 Dkt. 44.) Four years after that, in 2016, the Ninth Circuit issued its remand order, directing 16 the Court to consider the four claims under the intervening law of Martinez and McKinney. 17 (Id., Dkt. 58; Doc. 140.) 18 DISCUSSION 19 As noted in prior orders, Spears’s habeas claims are analyzed under the 20 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to the 21 AEDPA, a petitioner is not entitled to habeas relief on any claim adjudicated on the merits 22 in state court unless the state court’s adjudication (1) resulted in a decision that was 23 contrary to, or involved an unreasonable application of, clearly established federal law or 24 (2) resulted in a decision that was based on an unreasonable determination of the facts in

25 2 In September 2010, before filing his opening brief with the Ninth Circuit Court of 26 Appeals, Spears filed a motion to stay his appeal while he pursued post-conviction relief in state court on a claim of newly-discovered evidence—an allegation that new evidence 27 showed that Spears’s conviction and sentence were based on faulty “toolmarks” evidence linking the 9mm shell to his gun. (Ninth Cir. No. 09-99025, Dkt. 17.) The Court of Appeals 28 denied Spears’s request for a stay, without prejudice to filing a motion to stay in this Court. (See Doc. 140.) Spears filed, and the Court denied, such a motion. (Docs. 145, 152.) 1 light of the evidence presented in state court. 28 U.S.C. § 2254(d). For claims not 2 adjudicated on the merits in state court, “federal habeas review . . . is barred unless the 3 prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged 4 violation of federal law, or demonstrate that failure to consider the claims will result in a 5 fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). 6 Pursuant to 28 U.S.C. § 2254(e)(2), a federal habeas court may not hold a hearing 7 or expand the record unless it determines that the petitioner exercised diligence in trying 8 to develop the factual basis of the claim in state court. See Williams (Michael) v. Taylor, 9 529 U.S. 420, 432 (2000). If the failure to develop a claim’s factual basis is attributable to 10 the petitioner, a federal court may hold an evidentiary hearing only if the claim relies on 11 (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the 12 Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not 13 have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 14 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish by 15 clear and convincing evidence that but for constitutional error, no reasonable fact finder 16 would have found the [petitioner] guilty of the underlying offense.” Id. 17 1. Claims 15(c) and 15(d) 18 Claims 15(c) and 15(d) allege that trial counsel performed ineffectively at 19 sentencing by, respectively, failing to investigate and present mitigating evidence, 20 including failing to provide the defense mental health expert with adequate information, 21 and failing to challenge the pecuniary gain aggravating factor. Spears raised these claims 22 during his PCR proceedings (ROA-PCR 157 at 18–21) and the state court denied them on 23 the merits (ROA-PCR 161 at 9). The Arizona Supreme Court denied review. 24 A. Intervening law 25 On remand, the Ninth Circuit directed the Court to “address in light of intervening 26 law whether relief is warranted on Claim 15(c)” and “[f]or clarity of the record” to “address 27 whether reconsideration of Claim 15(d) . . . is warranted in light of intervening law.” (Doc. 28 140.) As “intervening law” the Ninth Circuit cited, among other cases, Martinez, 566 U.S. 1 1, Cullen v. Pinholster, 563 U.S. 170 (2011), and Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2 2014) (en banc).3 (Id. at 1, n.1.) With respect to Claim 15(c), the Ninth Circuit noted (1) 3 that this Court previously denied the claim on the merits based on the state court record 4 and the record as expanded by the new evidence presented in these habeas proceedings and 5 (2) denied Spears’s request for evidentiary development. (Doc. 140, citing Doc. 120 at 23– 6 26 and Doc. 134 at 45–59.) With respect to Claim 15(d), the Ninth Circuit noted that this 7 Court found the claim exhausted and denied it on the merits while finding that Claim 11, 8 which alleged there were insufficient facts supporting the pecuniary gain factor, was 9 procedurally barred. (Doc. 140, citing Doc. 120 at 8–12, 27 and Doc. 134 at 59–61.) 10 This Court denied Claims 15(c) and 15(d) under § 2254(d) in an order dated 11 September 14, 2009.4 (Doc. 134 at 45–61.) Chronologically, the first of the intervening 12 cases cited by the Ninth Circuit is Pinholster, decided in 2011. There the United States 13 Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before 14 the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181 (“[T]he 15 record under review is limited to the record in existence at that same time, i.e. the record 16 before the state court”). The Ninth Circuit, in turn, has held that “Pinholster and the 17 statutory text make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims 18 as well.” Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (2013). 19 The next intervening case is Martinez, 566 U.S. 1, decided in 2012, which addressed 20 procedurally defaulted claims of ineffective assistance of trial counsel. While Coleman 21 held that ineffective assistance of counsel in PCR proceedings could not establish cause to 22 23 24 3 The court also cited Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013). Nguyen expanded Martinez to hold that claims of ineffective assistance of appellate counsel could 25 be excused by the ineffective performance of PCR counsel. In Davila v. Davis, 137 S. Ct. 2058 (2017), the United States Supreme Court held that Martinez applied only to defaulted 26 claims of ineffective assistance of trial counsel. 27 4 In a prior order the Court had denied Spears’s requests for evidentiary development, finding that Spears did not diligently develop the factual bases of the claims 28 in state court and rejecting Spears’s argument that the failure should not be imputed to him but to PCR counsel. (Doc. 120 at 24–25.) 1 excuse a claim’s procedural default, the Martinez Court announced a “narrow exception” 2 to that rule: 3 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will 4 not bar a federal habeas court from hearing a substantial claim of ineffective 5 assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 6 566 U.S. at 17. 7 Accordingly, under Martinez an Arizona habeas petitioner may establish cause and 8 prejudice for the procedural default of a claim of ineffective assistance of trial counsel by 9 demonstrating that PCR counsel was ineffective and the underlying claim of ineffective 10 assistance of trial counsel has some merit. See Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 11 2012) (citing Martinez, 566 U.S. at 14). 12 To establish “cause” under Martinez, a petitioner must show that PCR counsel was 13 ineffective under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). 14 Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by 15 McKinney, 813 F.3d 798. This requires a demonstration “that both (a) post-conviction 16 counsel’s performance was deficient, and (b) there was a reasonable probability that, absent 17 the deficient performance, the result of the post-conviction proceedings would have been 18 different.” Clabourne, 745 F.3d at 377 (citation omitted). To establish “prejudice,” a 19 petitioner must demonstrate that his underlying ineffective assistance of trial counsel claim 20 is “substantial” or has “some merit.” Id. 21 The next intervening cases are from the Ninth Circuit: Dickens, 740 F.3d 1302; 22 Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc); and Woods v. Sinclair, 764 F.3d 23 1109, 1138 n.16 (9th Cir. 2014). The court in Dickens considered an ineffective assistance 24 of trial counsel claim that was raised in state court but later received additional evidentiary 25 support in federal court. Dickens held that factual allegations not presented to a state court 26 may render such a claim unexhausted, and thereby subject to analysis under Martinez, if 27 the new allegations “fundamentally alter” the claim or place the case in a significantly 28 1 different and stronger evidentiary posture than it was when the state court considered 2 it. 740 F.3d at 1318–19 3 In Dickens the court also rejected the argument that § 2254(e)(2) barred evidentiary 4 development of Martinez claims in federal court, explaining that a petitioner seeking to 5 show “cause” under Martinez is not asserting a “claim.” Id. at 1321 (“A federal court’s 6 determination of whether a habeas petitioner has demonstrated cause and prejudice . . . is 7 not the same as a hearing on a constitutional claim for habeas relief.”); see Woods, 764 8 F.3d at 1138 n.16 (explaining that neither Pinholster nor § 2254(e)(2) “categorically bar [a 9 petitioner] from obtaining such a hearing or from presenting extra-record evidence to 10 establish cause and prejudice for the procedural default. . . .”). 11 Subsequently, however, in Shinn v. Ramirez, 596 U.S. 366, 382 (2023), the Supreme 12 Court held that in adjudicating a Martinez claim, “a federal habeas court may not conduct 13 an evidentiary hearing or otherwise consider evidence beyond the state-court record based 14 on ineffective assistance of state postconviction counsel” unless the petitioner satisfies the 15 “stringent requirements” of 28 U.S.C. § 2254(e)(2). Section 2254(e)(2) applies only when 16 there has been “a failure to develop the factual basis of a claim” due to “a lack of diligence, 17 or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 383 18 (quoting Williams (Michael), 529 U.S. at 432). A petitioner bears “‘responsibility’ for all 19 attorney errors during [PCR] proceedings,” including “counsel’s negligent failure to 20 develop the state postconviction record.” Id. (quoting Williams (Michael), 529 U.S. at 432). 21 In such a case, a federal court may order an evidentiary hearing or otherwise expand the 22 state-court record only if the prisoner can satisfy § 2254(e)(2). Id. 23 B. Analysis 24 Spears raised Claims 15(c) and (d) in his PCR petition. (ROA-PCR 157.) This Court 25 found that the PCR court’s denial of the claims was based on neither an “unreasonable 26 determination of the facts” nor an “unreasonable application of controlling federal law.” 27 (Doc. 134 at 59, 61.) 28 1 Relying on Dickens, Spears now argues that the claims were procedurally defaulted 2 in state court because they have been “fundamentally altered” by new factual allegations 3 raised in federal court. (Doc. 163 at 26.) Therefore, according to Spears, the claims’ default 4 is to be analyzed for cause and prejudice within the framework of Martinez. Spears 5 contends that under that framework, PCR counsel’s ineffective performance excuses the 6 default. He further contends that under Dickens, Woods, and other Ninth Circuit authority, 7 he is entitled to evidentiary development, notwithstanding Pinholster and § 2254(e)(2), in 8 order to establish “cause” under Martinez. Finally, he argues that he was diligent in state 9 court and therefore can overcome the strictures of § 2254(e)(2). These arguments fail. 10 This Court, in addressing Claims 15(c) and (d) in previous orders, did not have the 11 benefit of the Pinholster decision, so in addition to analyzing the claims based on the state 12 court record, the Court also considered the new evidence Spears presented in these habeas 13 proceedings. Nevertheless the Court found that the claims did not satisfy Strickland. (Doc. 14 134 at 51–59.) 15 The new evidence Spears presented in support of Claim 15(c) included the opinion 16 of a psychiatrist, Dr. Arturo Silva, who diagnosed Spears with PTSD, factitious disorder, 17 depressive disorder, and ADHD; the results of a quantitative electroencephalogram 18 (qEEG) purportedly showing “evidence of insult to the brain”; and declarations from 19 family and friends discussing Spears’s childhood abuse. (Doc. 134 at 51–53.) As discussed 20 next, the Court now concludes that under Dickens this new evidence did not fundamentally 21 alter the claim raised in state court or place the case in a significantly different and stronger 22 evidentiary posture than it was when it was decided by the state court. Dickens, 740 F.3d 23 at 1318–19. 24 In his state court petition, Dickens argued that counsel provided ineffective 25 assistance by failing to direct the work of a court-appointed psychologist and failing to 26 adequately investigate Dickens’s background for evidence of impairment. In his federal 27 habeas petition, however, Dickens included factual allegations suggesting that he suffered 28 from Fetal Alcohol Syndrome and organic brain damage. The Ninth Circuit found that “the 1 new allegations and evidence Dickens presented to the federal district court fundamentally 2 altered Dickens’s previously exhausted [ineffective assistance of counsel] claim.” Id. at 3 1319 (“[T]he new evidence creates a mitigation case that bears little resemblance to the 4 naked Strickland claim raised before the state courts. There, Dickens did not identify any 5 specific conditions that sentencing counsel’s allegedly deficient performance failed to 6 uncover.”). 7 In Spear’s case, by contrast, the claims raised in the PCR proceedings and Claims 8 15(c) and (d) of his habeas petition are not fundamentally different. In his PCR petition, 9 for example, Spears alleged that trial counsel’s investigation into his mental health was 10 inadequate because counsel failed to ask his psychological expert, Dr. Mickey McMahon, 11 to explain how Spears’s mental impairment—namely his PTSD, as diagnosed by Dr. 12 McMahon based on the abuse Spears suffered as a child—played a role in his behavior at 13 the time of the crime. 5 (ROA-PCR 157 at 18–19.) Spears further argued that Dr. McMahon 14 should have required Spears to undergo neurological testing in search of potential 15 mitigation. (Id. at 19–20.) The PCR court denied the claim, noting that Spears’s defense at 16 trial was that he did not commit the murder and therefore it was “incongruous” for him to 17 allege ineffective assistance based on counsel’s failure to present evidence of his mental 18 state at the time of the murder. (ROA-PCR 161 at 9.) The court also found that Spears had 19 “fail[ed] to indicate what mitigating evidence should have been presented” that was not 20 presented. (Id.) 21 In Claim 15(c) of his amended habeas petition, Spears alleged that counsel 22 performed ineffectively by failing to investigate and present evidence that prior to and at 23 24 5 As the Court noted in its order denying Claim 15(c), Dr. McMahon’s testimony at Spears’s sentencing described Spears’s difficult childhood, which included beatings by his 25 alcoholic father, and the results of mental health testing that showed a lack of future dangerousness. (Doc. 134 at 46.) Along with childhood PTSD, Dr. McMahon diagnosed 26 Spears with depression, which was being treated with medication. (Id.) According to Dr. McMahon, Spears’s PTSD may be re-triggered by trauma, which could cause Spears to act 27 impulsively and reflexively. (Id.) Dr. McMahon did not believe that Spears suffered from neurological problems. (Id.) He testified that, although Spears engaged in attention-seeking 28 behavior and was insecure, he was not chronically violent and likely would not be violent in prison. (Id.) 1 the time of the offense he suffered from the conditions identified by Dr. Silva and that his 2 behavior was affected by these conditions. (Doc. 102 at 66–67.) Spears further alleged that 3 counsel should have investigated his history of head injuries, which would have led to 4 “evidence of frontal lobe dysfunction which would manifest behaviorally by disregulation 5 [sic] of emotions and behavior, impulsivity and poor judgment.” (Id. at 67, 73–74.) Finally, 6 Spears alleged that counsel failed to interview additional witnesses who could have 7 provided information about the violence and abuse in the Spears family and Spears’s 8 history of “fabricating stories about himself.” (Id. at 69, 72–73.) 9 After filing his amended habeas petition, Spears moved for evidentiary development 10 in support of his ineffective assistance of counsel claims. (Doc. 103.) The new evidence 11 Spears sought to present included a report by Dr. Silva. (Id., Ex. Y at 6.) Dr. Silva indicated 12 that Spears’s depressive disorder arose from childhood abuse and the end of his second 13 marriage, and that the factitious disorder began when Spears learned as a child to tell stories 14 in order to avoid being punished by his father. (Id. at 15–16.) Dr. Silva’s testing did not 15 reveal evidence of cognitive deficits, executive dysfunction, or dissociative disorder. (Id. 16 at 28–30.) Because Spears continued to deny involvement in the crime, Dr. Silva could 17 only theorize about the effect of Spears’s conditions on his actions in killing Jeanette. He 18 hypothesized that if Jeanette had threatened Spears or confronted him with his 19 deceitfulness, Spears’s PTSD and depressive order may have caused him to lose control 20 and become violent. (Id. at 52–53.) If Jeanette had challenged Spears’s inflated impression 21 of himself, his factitious disorder might have led him to act in the heat of passion. (Id. at 22 53–54.) Finally, Dr. Silva suggested that Spears’s ADHD disorder may have diminished 23 his impulse control and increased his hostility. (Id. at 54.) 24 Along with Dr. Silva’s diagnoses, Spears also proffered a qEEG report. (Doc. 105 25 at 24; Doc. 103, Ex. Y.) This testing purportedly revealed “evidence of insult(s) to the brain 26 resulting in frontal lobe dysfunction. This finding would be behaviorially manifested by 27 disregulation of emotions and behavior, impulsivity and poor judgement.” (Doc. 103, Ex. 28 Y at 1, 9.) 1 Spears also submitted declarations from family members and friends who described 2 the abuse he suffered at the hands of his parents. (Id., Ex. A–D, F, G, I, L.) His father 3 disciplined Spears with a objects including a belt, switches, and a car antenna. (Id., Ex. E– 4 G.) Spears was a respectful and dutiful son who did what he was told and was kind to those 5 in his extended family. (Id., Ex. A–D, I, L.) Spears’s father was himself physically abused 6 as a child and grew up in a home filled with anger, violence, mental illness, and alcoholism. 7 (Id., Ex. A–E.) Spears’s ex-wives and his daughter characterized him as kind, 8 compassionate, sensitive, and musically talented. (Id., Ex. K, M, R.) His second wife 9 described his escalating use of drugs, increased anger, depression, and inability to stay 10 employed. (Id., Ex. R.) Spears’s friends stated that his use of drugs hardened him. (Id., Ex. 11 H, W.) 12 In a 2005 order addressing the procedural status of Spears’s claims, this Court found 13 that Claims 15(c) and (d) were properly exhausted. (Doc. 120 at 11–12.) The Court also 14 denied Spears’s request for evidentiary development, finding, as relevant here, that Spears 15 did not diligently develop the facts supporting his ineffective assistance of counsel claims 16 in state court and noting that PCR counsel’s failure to develop the record is imputed to the 17 petitioner. (Id. at 23–26) (citing Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000)). 18 In its 2009 order denying Spears’s amended habeas petition, this Court, applying 19 28 U.S.C. § 2254(d) and considering only the state court record, found that the PCR court’s 20 denial of Claims 15(c) and (d) “was not based on an unreasonable determination of the 21 facts or application of Strickland.” (Doc. 134 at 51, 61.) As noted above, the Court 22 alternatively found the claims meritless even considering Spears’s new evidence. (Id. at 23 53–61). The Court found that the evidence, including Dr. Silva’s opinions, was speculative, 24 cumulative, and lacking in mitigating weight. (Id. at 56–59.) The Court explained that 25 Spears’s continued denial of involvement in the murder imposed limitations on the 26 usefulness of mental health mitigation evidence. (Id. at 55) (citing, e.g., Wellons v. Hall, 27 554 F.3d 923, 930 n.2 (11th Cir. 2009)). 28 1 The Court now reiterates that Dr. Silva’s report and the declarations from friends 2 and family supplement, but do not fundamentally alter, the claim raised in state court.6 See 3 Williams v. Filson, 908 F.3d 546, 573–76 (9th Cir. 2018) (finding that a new expert report 4 “merely” corroborated the allegations in the state court petition and did not place the claim 5 in a “significantly different and stronger evidentiary posture” or transform it “into a new 6 and unexhausted claim”); Creech v. Richardson, 59 F.4th 372, 382, 388–89 (9th Cir. 2022) 7 (agreeing with district court that “the proffered additional evidence of brain damage and 8 organic factors was not sufficient to transform Creech’s ineffective-assistance-of-counsel 9 sub-claims into new claims”); Lee v. Ryan, 2019 WL 1932110, at *1 (D. Ariz. May 1, 10 2019) (explaining that a “claim of ineffective assistance of counsel is not fundamentally 11 altered by new factual allegations related to the specific claim raised in state court”). 12 Claim 15(c) was decided on the merits in state court and denied by this Court under 13 § 2254(d)(1) and (2). Pinholster therefore precludes this Court from considering new 14 evidence in support of the claim. Pinholster, 563 U.S. at 185–86; see Henry v. Ryan, 720 15 F.3d 1073, 1093 n.15 (9th Cir. 2013) (“Given that Henry has not satisfied § 2254(d), the 16 district court did not abuse its discretion by denying Henry’s request for an evidentiary 17 hearing.”); Wood v. Ryan, 693 F.3d 1104, 1122 (9th Cir. 2012) (“Wood is not entitled to 18 an evidentiary hearing or additional discovery in federal court because this ineffective 19 assistance of counsel claim is governed by 28 U.S.C. § 2254(d)(1), as it was adjudicated 20 on the merits in the PCR proceedings.”); see also Escamilla v. Stephens, 749 F.3d 380, 394 21 (5th Cir. 2014) (“Martinez does not apply to claims that were fully adjudicated on the 22 merits by the state habeas court because those claims are, by definition, not procedurally 23 defaulted.”). 24 Next, with respect to Claim 15(d), in state court Spears alleged in a conclusory 25 fashion that trial counsel performed ineffectively in contesting the pecuniary gain

26 6 Spears’s more-recent request for evidentiary development includes a 2018 27 declaration from a clinical social worker and sociologist specializing in trauma and abuse. (Doc. 164-1, Ex. 32.) She opines that the abuse Spears suffered at the hands of his father 28 “led him to experience characteristics of both Child Abuse Syndrome and Stockholm Syndrome. (Id. at 3.) 1 aggravating factor. (ROA-PCR 157 at 21.) The PCR court denied the claim, finding neither 2 deficient performance nor prejudice under Strickland. (ROA-PCR 161.) 3 4 During these habeas proceedings Spears argued that the victim’s diary cast doubt 5 on the pecuniary gain factor because it showed that Spears was able to manipulate the 6 victim to obtain money and therefore had no motive to kill her. (Doc. 79 at 69–71.) In 7 Claim 15(d), Spears alleged that counsel should have used the contents of the diary to 8 challenge the pecuniary gain factor. (Id. at 95–96.) The Court found the claim exhausted 9 and denied it on the merits, concluding that there was not a “reasonable probability that the 10 sentencing judge would not have found the pecuniary gain aggravating factor if counsel 11 had relied on information from the diary.” (Doc. 134 at 61.) 12 Like Claim 15(c), Claim 15(d) was raised in state court and denied on the merits, 13 and subsequently denied by this Court pursuant to § 2254(d)(1). (Doc. 134 at 61.) 14 Pinholster therefore precludes this Court from considering new evidence in support of the 15 claim. Pinholster, 563 U.S. at 185–86; see Henry, 720 F.3d at 1093 n.15; Wood, 693 F.3d 16 at 1122. 17 Moreover, Spears would not be entitled to relief even if the Court were to find, based 18 on Martinez and Dickens, that Claims 15(c) and (d) must be considered defaulted because 19 they have been fundamentally altered by Spear’s new evidence. Under the Supreme Court’s 20 decision in Shinn v. Ramirez, this Court is barred from considering Spears’s new evidence 21 in determining whether “cause” exists for the purported default of Claims 15(c) and (d). 22 The Ramirez Court explained that “under § 2254(e)(2), a federal habeas court may not 23 conduct an evidentiary hearing or otherwise consider evidence beyond the state-court 24 record based on ineffective assistance of state postconviction counsel.” 596 U.S. at 382. 25 According to Ramirez, a petitioner is at fault when PCR counsel is negligent in 26 developing the record, and therefore “a federal court may order an evidentiary or otherwise 27 expand the state-court record only if the prisoner can satisfy § 2254(e)(2)’s stringent 28 requirements.” Id. at 384. Section 2254(e)(2) applies only when there has been “a failure 1 to develop the factual basis of a claim” due to “a lack of diligence, or some greater fault, 2 attributable to the prisoner or the prisoner’s counsel.” Id. at 383 (quoting Williams 3 (Michael), 529 U.S. at 432). A petitioner bears “‘responsibility’ for all attorney errors 4 during [PCR] proceedings,” including “counsel’s negligent failure to develop the state 5 postconviction record.” Id. (quoting Williams (Michael), 529 U.S. at 432). In such a case, 6 a federal court may order an evidentiary hearing or otherwise expand the state-court record 7 only if the prisoner can satisfy § 2254(e)(2). Id. “In all but these extraordinary cases, 8 AEDPA ‘bars evidentiary hearings in federal habeas proceedings initiated by state 9 prisoners.’” Id. at 1728 (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013)). Spears 10 does not attempt to meet the requirements of § 2254(e)(2). 11 Spears maintains, however, that despite PCR counsel’s neglect, he was diligent in 12 his own efforts to develop the facts in state court and therefore § 2254(e)(2) does not apply. 13 (Doc. 195 at 27–29.) He notes that he retained a private investigator and provided PCR 14 counsel with the case file and a list of mitigating issues. (Id. at 27.) Spears relies on 15 Mothershead v. Wofford, 608 F.Supp.3d 1024 (W.D. Wa. 2002), reversed and remanded 16 by Mothershead v. Wofford, 2023 WL 5928498 (9th Cir. 2023), to support this argument. 17 (Id. at 29.) 18 In Mothershead, the district court found, based on the case’s “unique factual 19 record,” that the petitioner was not “at fault” under Ramirez and Williams for the lack of 20 development of the state court record and therefore Ramirez did not bar the court from 21 holding an evidentiary hearing. 608 F.Supp.3d at 1031–33. The court found that the pro se 22 petitioner made “consistent efforts to squarely present the merits of her [ineffective 23 assistance of counsel] claim to the State courts” in her post-conviction petition. Id. at 1031. 24 She requested an evidentiary hearing and supplemented the record with a declaration from 25 her trial counsel and the preliminary report of an expert. Id. These efforts led to the 26 appointment of post-conviction counsel, who repeated the petitioner’s request for an 27 evidentiary hearing but did not otherwise supplement the materials presented by the 28 petitioner herself. Id. The district court held that, while counsel’s efforts may have “rise[n] 1 to the level of cause to excuse the procedural default,” the “otherwise sound record of 2 diligence” demonstrated that the petitioner was not “at fault” for the undeveloped record 3 and § 2254(e)(2) had no application. Id. at 1032. 4 On appeal, the Ninth Circuit reversed on other grounds. Mothershead v. Wofford, 5 2023 WL 5928498 (9th Cir. 2023). The court concluded that the district court had erred in 6 finding the ineffective assistance of counsel claim procedurally barred and not subject to 7 merits review under § 2254(d) (noting that the state court had “properly concluded that 8 ‘Mothershead failed to show there is a reasonable probability that the testimony of [the 9 expert] would have altered the outcome’”). Id. at *1. Having made that determination, the 10 court found it unnecessary to address the application of § 2254(e)(2) or Ramirez. Id. 11 This Court is not bound by the district court’s decision in Mothershead. See 12 Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court 13 judge is not binding precedent in either a different judicial district, the same judicial 14 district, or even upon the same judge in a different case.”). In any event, Mothershead is 15 factually distinguishable from Spears’s case. Prior to the appointment of counsel, the 16 petitioner in Mothershead, representing herself, developed evidence and requested an 17 evidentiary hearing. According to the district court, this “unique” factual scenario 18 supported a finding that the petitioner was diligent, notwithstanding counsel’s neglect in 19 failing to further develop the record. Spears, by contrast, was represented by counsel during 20 the PCR proceedings, and any negligence in failing to develop the state court record is 21 imputed to Spears. 22 Ramirez forecloses the argument that Spears is entitled to present evidence beyond 23 the state court record to prove PCR counsel’s ineffectiveness. See Creech, 59 F.4th at 389 24 (“Because we cannot consider the evidence presented for the first time to the district court, 25 Creech’s Martinez claim necessarily fails.”) The intervening case law cited by the Ninth 26 Circuit therefore does not affect the Court’s denial of Claims 15(c) and (d) on the merits. 27 Spears’s requests for evidentiary development (see Doc. 163) are also denied 28 pursuant to Pinholster, because the claims were decided on the merits in state court. 1 Alternatively, to the extent either claim was fundamentally altered by new evidence and 2 therefore defaulted, Ramirez and 2254(e)(2) bar the presentation of new evidence. 3 2. Claims 12 and 14 4 In Claim 12 of his amended petition, Spears alleges that the trial court failed to 5 properly consider and give weight to the mitigating evidence he presented at sentencing 6 and improperly concluded that the lone aggravating circumstance outweighed the 7 mitigating evidence presented. (Doc. 79 at 73–75.) In Claim 14, he alleges that the Arizona 8 Supreme Court committed the same violation in its independent review of his death 9 sentence. (Id. at 79–82.) In its order of September 2009, the Court denied these claims on 10 the merits, finding that the state courts did not improperly foreclose the consideration of 11 Spears’s difficult childhood and mental health mitigation. (Doc. 134 at 38–41.) 12 A sentencer may not “refuse to consider, as a matter of law, any relevant mitigating 13 evidence.” Eddings v. Oklahoma, 455 U.S. 104, 114 (1982); see Lockett v. Ohio, 438 U.S. 14 586, 604 (1978). While the sentencer “may determine the weight to be given relevant 15 mitigating evidence,” it “may not give it no weight by excluding such evidence from [its] 16 consideration.” Eddings, 455 U.S. at 114–15. Applying Lockett and Eddings, the Supreme 17 Court has held that a state cannot adopt a “causal nexus” rule—that is, a rule precluding a 18 sentencer from considering mitigating evidence unless there is a causal connection between 19 the evidence and the crime. Tennard v. Dretke, 542 U.S. 274, 287 (2004). The sentencer 20 may, however, consider “causal nexus . . . as a factor in determining the weight or 21 significance of mitigating evidence.” Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011), 22 overruled on other grounds by McKinney, 813 F.3d at 819; see Styers v. Ryan, 811 F.3d 23 292, 298–99 (9th Cir. 2015) (holding that the Arizona Supreme Court did not 24 violate Eddings in assigning little weight to the petitioner’s PTSD when it lacked a causal 25 connection to the crime). 26 In 2015 the Court of Appeals for the Ninth Circuit issued its en banc opinion in 27 McKinney, 813 F.3d 798. The court held that the Arizona Supreme Court, for a period of 28 1 more than 15 years,7 “consistently” violated Eddings in its capital sentencing analysis by 2 requiring a defendant to show a causal nexus between his proffered mitigating evidence 3 and the crime. Id. at 802. The court explained: 4 The decisions of the Arizona Supreme Court make clear that family background or a mental condition could be given weight as a nonstatutory 5 mitigating factor, but only if defendant established a causal connection 6 between the background or condition and his criminal behavior. For a little over fifteen years, the Arizona Supreme Court routinely articulated and 7 insisted on its unconstitutional causal nexus test. . . . 8 Id. at 815. 9 As an example of the Arizona Supreme Court applying this causal nexus test, the 10 Ninth Circuit cited State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), which 11 held that “[a] difficult family background, in and of itself, is not a mitigating circumstance. 12 . . . A difficult family background is a relevant mitigating circumstance if a defendant can 13 show that something in that background had an effect or impact on his behavior that was 14 beyond the defendant’s control.” The Ninth Circuit explained that “[t]he [Arizona 15 Supreme] Court could not have been clearer that, as a matter of law, nonstatutory 16 mitigation evidence not satisfying the causal nexus test was irrelevant. This test was in 17 direct contravention of Eddings and Lockett.” McKinney, 813 F.3d at 814. 18 In considering Spears’s argument that the Arizona courts imposed an 19 unconstitutional nexus test on his mitigating evidence, the Court looks to cases 20 applying McKinney. In Greenway v. Ryan, 866 F.3d 1094 (9th Cir. 2017), for example, the 21 Ninth Circuit noted that: “We said in McKinney that the Arizona courts had ‘consistently’ 22 applied the causal-nexus test. . . . We did not say, however, that Arizona had always applied 23 it.” Id. at 1095 (citation omitted). In Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), the court 24 discussed several “critical factors” to be considered in determining whether the Arizona 25 Supreme Court violated Eddings by applying a causal nexus test in cases upholding a death 26 27 7 From State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989), until State v. Anderson, 28 210 Ariz. 327, 111 P.3d 369 (2005). Spears was sentenced in 1993. The Arizona Supreme Court reviewed and affirmed his sentence in 1996. 1 sentence. Apelt, 878 F.3d at 839–40. These factors include whether the trial court “state[d] 2 a factual conclusion that any of [the petitioner’s] proffered mitigation failed to affect his 3 conduct”; whether the Arizona Supreme Court “state[d] a factual conclusion that any of 4 [the petitioner’s] proffered mitigation would have influenced him not to commit the 5 crime”; and whether the Arizona Supreme Court cited either Ross or Wallace in reviewing 6 the mitigating evidence.8 Id. at 840. 7 Although the Court reviews the Arizona Supreme Court’s decision, the Court may 8 look to the decision of the sentencing judge to the degree it was adopted or substantially 9 incorporated by the Arizona Supreme Court. Martinez (Ernesto), 926 F.3d 1215, 1236 (9th 10 Cir. 2019) (citing McKinney, 813 F.3d at 819). At sentencing in Spears’s case, the trial 11 court found one aggravating factor, pecuniary gain. (ROA 96 at 2.) The court then 12 considered each of Spears’s proffered mitigating circumstances. (Id. at 3–7.) The court 13 found that Spears established lack of criminal history as a mitigator. (Id. at 3.) With respect 14 to Spears’s “difficult family history,” “psychological profile,” and “difficult childhood,” 15 the court noted that Spears “has produced evidence that he was physically and emotionally 16 abused by an alcoholic father.” (Id. at 4.) However, the court found that “[a] difficult family 17 background in and of itself is not a mitigating circumstance. . . . A difficult family 18 background is a relevant mitigating circumstance if a defendant can show that something 19 in that background had an affect or impact on his behavior that was beyond the defendant’s 20 control.” (Id.) (quoting Wallace, 160 Ariz. at 427, 773 P. 2d at 986). The court continued: 21 Although Mr. Spears had an unhappy childhood, an abusive father, and may have suffered or may be suffering from childhood post-traumatic stress 22 syndrome, no evidence has been presented that links even remotely how this 23 may have impacted his behavior in late 1991 and early 1992. The defendant has no history of any neurological problems. There is nothing about the 24 defendant’s psychological history, childhood or family background that 25 equates to a mitigating circumstance. 26 (Id.) 27

28 8 State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994). 1 The court concluded its review of the mitigating circumstances by explaining that it 2 had: 3 also considered some factors that singularly might not be mitigating but do have some mitigating value: [Spears’s mother] loves her son. In addition 4 defendant’s demeanor and conduct in court and his conduct while 5 incarcerated, the time he spent in military service and his psychological profile, taken together have some mitigating value. 6 (Id. at 6–7.) 7 Summarizing its findings with respect to the mitigating circumstances, the court 8 reiterated that it had “consider[ed] the defendant’s character, his propensities, and lack of 9 a criminal record and everything that is mitigating and potentially mitigating.” (Id. at 7.) 10 It is arguable that under McKinney and its progeny, the trial court applied an 11 unconstitutional nexus test to Spears’s evidence of a difficult family history and childhood 12 PTSD. The court stated as a “factual conclusion” that Spears’s “proffered mitigation failed 13 to affect his conduct” and in doing so cited Wallace. Apelt, 878 F.3d at 840. However, the 14 court also stated that it had “consider[ed] everything that is mitigating and potentially 15 mitigating,” indicating that it neither found the evidence “irrelevant,” McKinney, 813 F.3d 16 at 814, nor refused to consider it, Eddings, 455 U.S. at 114. 17 On direct appeal, the Arizona Supreme Court first discussed the trial court’s 18 assessment of Spears’s difficult-childhood mitigating evidence: 19 A difficult family background is not necessarily a mitigating circumstance 20 unless defendant can show that something in his background had an effect 21 on his behavior that was beyond his control. See Stokley, 182 Ariz. at 524, 898 P.2d at 473. A clinical psychologist testified that defendant suffered a 22 physically and emotionally abusive childhood. His father drank 23 considerably, was a strict disciplinarian, and beat defendant frequently. The psychologist diagnosed defendant with post-traumatic stress disorder that 24 could be retriggered at any time, causing impulsive, irrational behavior. Even 25 if this diagnosis is correct, it does not explain why defendant murdered Jeanette. Defendant’s actions were planned and deliberate, not impulsive. 26 See Bolton, 182 Ariz. at 314, 896 P.2d at 854. Therefore, the trial court 27 appropriately gave defendant’s background minimal mitigating weight. 28 Spears, 184 Ariz. at 293–94, 908 P.2d at 1078–79. 1 The court then performed its independent review of the aggravating and mitigating 2 factors: 3 we agree with the trial court’s findings that defendant committed this murder in expectation of pecuniary gain and that defendant’s lack of a significant 4 prior criminal record was a mitigating factor. In addition, we believe that the 5 trial court appropriately gave some mitigating weight, however minimal, to defendant’s difficult family background and his good conduct. However, we 6 find that defendant’s military history is a mitigating factor whereas the trial 7 court stated that it was of only some mitigating value. Nonetheless, we believe that this minor distinction does not require us to remand this case for 8 resentencing because there is no new evidence to be received, no mitigating 9 evidence was improperly excluded, and the mitigating evidence is not significant. 10 Spears, 184 Ariz. at 295–96, 908 P.2d at 1080–81 (emphasis added). 11 As with the trial court’s ruling, from these passages it is unclear whether or not the 12 Arizona Supreme Court applied an improper nexus test to Spears’s evidence. The court 13 repeated the formulation that “a difficult family background is not necessarily a mitigating 14 circumstance unless defendant can show that something in his background had an effect 15 on his behavior that was beyond his control” and cited two cases, Stokley and Bolton, that 16 in turn cited Wallace, the case identified in McKinney as establishing the Arizona Supreme 17 Court’s unconstitutional causal nexus test. State v. Stokley, 182 Ariz. 505, 524, 898 P.2d 18 454, 473 (1995); State v. Bolton, 182 Ariz. 290, 314, 896 P.2d 830, 854 (1995). However, 19 the court also stated that evidence of Spears’s difficult family background and PTSD was 20 entitled to “minimal mitigating weight” and “some mitigating value.” Spears, 184 Ariz. at 21 294, 296, 908 P.2d at 1079, 1081. Therefore, the evidence was not excluded from the 22 court’s consideration due to a lack of causal connection to the crime. Rather, in weighing 23 the evidence, the court took into account the lack of a nexus. See Styers, 811 F.3d at 298– 24 99; Lopez, 630 F.3d at 1204. 25 The Court need not make a final determination as to whether Eddings error occurred 26 because any such error, if it did take place, did not prejudice Spears. See Martinez 27 (Ernesto), 926 F.3d at 1235. Under the harmless error doctrine, which applies to violations 28 1 of Eddings, the question is whether the error had a “substantial and injurious effect or 2 influence” on the court’s independent review. McKinney, 813 F.3d at 822 (quoting Brecht 3 v. Abrahamson, 507 U.S. 619, 623 (1993)); Greenway, 866 F.3d at 1100; see Djerf v. Ryan, 4 931 F.3d 870, 885 (9th Cir. 2019) (citing McKinney, 813 F.3d at 821–22) (“[R]elief is only 5 available when a causal nexus error was prejudicial—that is, when it was not harmless.”). 6 If a federal habeas judge is in “grave doubt” about whether a constitutional trial error had 7 a substantial and injurious effect or influence, the error is not harmless and “the petitioner 8 must win.” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 436, 445 (1995)). The Court 9 concludes that any error in Spears’s case was harmless. 10 In Martinez (Ernesto), the Ninth Circuit found that the Arizona Supreme Court had 11 committed Eddings error but determined that the petitioner was not prejudiced. 926 F.3d 12 at 1235–37. The Arizona Supreme Court had ruled that “[t]here is simply no nexus between 13 Martinez’[s] family history and [the crime]. His family history, though regrettable, is not 14 entitled to weight as a non-statutory mitigating factor.” State v. Martinez, 196 Ariz. 451, 15 465, 999 P.2d 795, 809 (2000). 16 In finding the Eddings error harmless, the Ninth Circuit noted that the Arizona 17 Supreme Court did in fact consider Martinez’s “violent family history,” not as nonstatutory 18 mitigation but in the context of the impaired capacity aggravating factor, and “decided not 19 to assign that family history great weight,” a “conclusion that did not violate the 20 Constitution.” Martinez (Ernesto), 926 F.3d at 1235. In Spears’s case as well, the Arizona 21 Supreme Court clearly “considered the family history evidence [Spears] argues they should 22 have considered.” Id.; see Spears, 184 Ariz. at 293–96, 908 P.2d at 1078–81. The state 23 supreme court in Spears also gave his family background at least “minimal” weight where 24 the court in Martinez found the evidence was “not entitled to weight.” Martinez, 196 Ariz. 25 at 465, 999 P.2d at 809. 26 In Martinez (Ernesto), the Ninth Circuit also looked to the decision of the trial court 27 and found that its analysis, which took into account the fact that Martinez’s violent 28 childhood was several years removed from the crime and therefore accorded the 1 circumstance “little weight,” “illustrate[d] how an objective factfinder would have ruled.” 2 926 F.3d at 1236. In Spears’s case, the Arizona Supreme Court itself objectively assessed 3 the mitigating evidence and found that Spears’s childhood PTSD was entitled to limited 4 weight because the murder was deliberate and planned rather than impulsive. Spears, 184 5 Ariz. at 293–94, 908 P.2d at 1078–79. 6 Finally, the Ninth Circuit in Martinez distinguished cases where it had found 7 prejudicial Eddings error by explaining that in those cases the application of a causal nexus 8 test left a “critical void” in the defendant’s “narrative.” Martinez (Ernesto), 926 F.3d at 9 1236 (quoting Spreitz v. Ryan, 916 F.3d 1262, 1281 (9th Cir. 2019)). No such void existed 10 here because the Arizona Supreme Court did not disregard evidence of Spears’s abusive 11 childhood and PTSD—it was weighed along with his other mitigating evidence. 12 Because Spears cannot demonstrate that the Eddings error had a substantial and 13 injurious effect on his sentence, he cannot establish prejudice. Accordingly, upon 14 reconsideration of Claims 12 and 14, the Court again finds that Spears is not entitled to 15 relief. 16 3. Stay 17 Spears asks the Court to stay these proceedings while he returns to state court to 18 exhaust Claims 15(c) and (d). (Doc. 195 at 16.) The request is denied. 19 A district court is authorized to stay a petition in “limited circumstances” to allow a 20 petitioner to present unexhausted claims to the state court without losing the right to federal 21 habeas review pursuant to the relevant one-year statute of limitations. Rhines v. Weber, 544 22 U.S. 269, 273–77 (2005). Rhines applies only to mixed petitions—those containing both 23 exhausted and unexhausted claims. See King v. Ryan, 564 F.3d 1133, 1139–40 (9th Cir. 24 2009). Accordingly, a Rhines stay would be inappropriate if the claims for which a 25 petitioner seeks a stay are actually exhausted. See e.g., Armstrong v. Ryan, No. CV-15- 26 00358-TUC-RM, 2017 WL 1152820 (D. Ariz. March 28, 2017); White v. Ryan, No. CV- 27 09-2167PHX-FJM-LOA, 2010 WL 1416054, *12 (D. Ariz. March 16, 2010) (“Because 28 1 the Petition in this case contains claims that are either actually or technically exhausted, it 2 is not a mixed Petition and Rhines does not apply.”). 3 As explained above, Claim 15(c) and (d) are exhausted. Spears’s petition is not 4 mixed, so Rhines is inapplicable and Spears is not entitled to a stay. 5 CERTIFICATE OF APPEALABILITY 6 Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant 7 cannot take an appeal unless a certificate of appealability has been issued by an appropriate 8 judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the 9 district judge must either issue or deny a certificate of appealability when it enters a final 10 order adverse to the applicant. If a certificate is issued, the court must state the specific 11 issue or issues that satisfy 28 U.S.C. § 2253(c)(2). 12 Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner 13 “has made a substantial showing of the denial of a constitutional right.” This showing can 14 be established by demonstrating that “reasonable jurists could debate whether (or, for that 15 matter, agree that) the petition should have been resolved in a different manner” or that the 16 issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 17 529 U.S. 473, 484 (2000). 18 The Court finds that reasonable jurists could debate its resolution of the remanded 19 claims. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons stated above, 3 IT IS ORDERED denying relief on remanded Claims 15(c), 15(d), 12, and 14. 4 IT IS FURTHER ORDERED denying Spears’s request for evidentiary 5 | development. 6 IT IS FURTHER ORDERED denying Spears’s request for a stay. (Doc. 195). 7 IT IS FURTHER ORDERED that a certificate of appealability is granted with 8 | respect to each of the remanded claims. 9 Dated this 12th day of February, 2024. 10 11 12 — ila. hie one Hdhorable Stephen M. McNamee 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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