Vera v. Shinn

Opinion

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

9 Ronnie Roy Vera, No. CV-15-00613-TUC-JCH

10 Petitioner, ORDER

11 v.

12 David Shinn,

13 Respondent. 14 15 Before the Court is Petitioner Ronnie Vera’s Motion for Stay of Proceedings and 16 All Deadlines (“Motion”). (Doc. 108.) The Motion is fully briefed. (Resp. to Pet’r’s Mot. 17 for Stay of Proceedings and All Deadlines, Doc. 112; Ronnie Vera’s Reply to State’s 18 Opp’n, Doc. 118.) Also pending is Petitioner’s motion for reconsideration of the Court’s 19 Order denying his motion for release on bail pending disposition of his habeas petition. 20 (Ronnie Vera’s Mot. for Recons. of Denial of his Mot. for Expedited Hr’g and Release 21 from Custody, Doc. 96.) Upon referral pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge 22 D. Thomas Ferraro issued his Report and Recommendation (“R. & R.”) on Petitioner’s 23 motion for release. (R. & R., Doc. 107.) For the reasons stated below, the Court grants 24 Petitioner’s request for a stay. Because this matter will be stayed pending further 25 proceedings in the state courts, the Court denies Petitioner’s motion to be released on bail 26 pending adjudication of his habeas petition. 27 I. Background 28 In 1995, at the age of 16, Ronnie Roy Vera (“Petitioner”) was arrested and charged 1 with first-degree felony murder and two counts of first-degree burglary. The Arizona Court 2 of Appeals presented the facts thusly:

3 Sixteen-year-old Vera and his friend, Greg Valencia, were on foot in a 4 condominium complex. Vera stole a bicycle from inside the walled patio of a condominium… Later, at about 10:30 p.m., he was riding the stolen bicycle 5 when Valencia entered another walled patio in the same complex to steal a 6 second bicycle… The victim and his wife heard what sounded like their patio gate rattling, and the victim went outside to investigate. The victim 7 confronted the two youths in a common area outside the victim’s patio and 8 attempted to restrain them. Vera threw the first bicycle at the victim and ran; Valencia drew a handgun and shot the victim once, fatally. After a transfer 9 hearing in juvenile court, Vera was tried as an adult. The state prosecuted 10 him for first-degree murder on a felony murder theory, with a predicate felony of burglary. 11 State v. Vera, 334 P.3d 754, 755 (Ariz. Ct. App. 2014) (quoting State v. Vera, Nos. 2 CA- 12 CR 96-0657, 2 CA-CR 98-544-PR (consolidated) (memorandum decision filed Aug. 31, 13 2000)). A jury found Petitioner guilty, and, in October 1996, he was sentenced to life 14 without parole for 25 years on the first-degree murder charge. See State of Arizona v. 15 Ronnie Vera, Pima Cnty. Superior Ct., CR-51483 (Sentence of Imprisonment, 10/24/1996). 16 In June 2013, Petitioner filed a post-conviction relief (“PCR”) petition in the 17 Arizona Superior Court, Pima County arguing that his sentence violated v. Alabama, 567 18 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Petitioner also asserted that because 19 Arizona had abolished parole in 1994 his only possibility of release after 25 years was 20 through pardon or commutation by the governor, not parole. See State of Arizona v. Ronnie 21 Vera, Pima Cnty. Superior Ct., CR-51483 (Petition, 6/20/2013). The superior court found 22 “the sentence [P]etitioner received for the conviction on first degree murder violates the 23 Eighth Amendment of the U.S. Constitution, based on the Supreme Court holding in Miller, 24 supra.” Id. at Ruling, 1/27/2014. Thus, the superior court granted Petitioner’s PCR petition 25 and ordered that he be resentenced in accordance with Miller v. Alabama, 567 U.S. 460, 26 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Id. 27 Before Petitioner’s resentencing, in July 2014, the Arizona legislature enacted Ariz. 28 1 Rev. Stat. § 13-716.1 As applied, § 13-716 made Petitioner eligible for parole after 25 years. 2 On Respondent’s appeal of the superior court’s grant of PCR relief, the Arizona Court of 3 Appeals held § 13-716 had modified Petitioner’s sentence sufficient to satisfy the Eighth 4 Amendment violation that the superior court found was contained in his sentence. The 5 appeals court thus vacated the superior court’s order granting Petitioner a resentencing. See 6 Vera, 334 P.3d at 755. 7 On June 17, 2015, Petitioner filed a motion in the United States Court of Appeals 8 for the Ninth Circuit seeking authorization to file a successive2 habeas petition in this 9 Court. He argued Ariz. Rev. Stat. § 13-716 violated the United States Constitution’s ex 10 post facto clause and failed to cure the Eighth Amendment violation contained in his 11 sentence. The Ninth Circuit granted Petitioner’s motion authorizing him to file a second 12 habeas petition in this Court. (Order, Doc. 10.) 13 On September 20, 2016, Petitioner filed an amended habeas petition (“Amended 14 Petition”) raising two grounds for relief: (1) that his sentence violated the United States 15 Constitution’s ex post facto clause, and (2) that his sentence violated the Eighth 16 Amendment’s prohibition against cruel and unusual punishment (the “Eighth Amendment 17 Claim”). (Am. Pet. for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Doc. 22 at 7- 18 8, 13.) Petitioner’s Eighth Amendment Claim alleges that the opportunity to obtain parole 19 contained in Ariz. Rev. Stat § 13-716 fails to comply with Miller v. Alabama, supra, and 20 Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). Id. at 21 20-21.

22 1 Section 716, Title 13, Arizona Revised Statutes, provides: Notwithstanding any other law, a person who is sentenced to life 23 imprisonment with the possibility of release after serving a minimum number of calendar years for an offense that was committed before the person 24 attained eighteen years of age is eligible for parole on completion of service of the minimum sentence, regardless of whether the offense was committed 25 on or after January 1, 1994. If granted parole, the person shall remain on parole for the remainder of the person's life except that the person's parole 26 may be revoked pursuant to § 31-415. See Ariz. Rev. Stat. § 13-716. 27 2 On May 8, 2002, Petitioner filed a § 2254 habeas petition in this Court. See Vera v. Stewart, Case No. 4:02-CV-234-FRZ, at Doc. 1. On March 30, 2011, Senior Judge Zapata 28 denied this petition. On July 19, 2013, the United States Court of Appeals for the Ninth Circuit affirmed. See Id. at Docs. 72, 86. 1 After a full briefing, Senior Judge Frank R. Zapata found that Petitioner’s sentence 2 as modified by Ariz. Rev. Stat § 13-716 violated the ex post facto clause and ordered 3 Petitioner’s Amended Petition be “conditionally granted unless the State of Arizona 4 constitutionally resentences Petitioner before January 12, 2018.” (Order, Doc. 56 at 1.) 5 Because Judge Zapata found Petitioner’s sentence violated the ex post facto clause, he did 6 not decide the Eighth Amendment Claim. Id. at 1-2. 7 On Respondent’s appeal, the Ninth Circuit reversed Judge Zapata’s conditional 8 grant of a writ of habeas corpus. (Memorandum, Doc. 75-1 at 1.) The Ninth Circuit found 9 that Ariz. Rev. Stat. § 13-716 had effectively resentenced Petitioner to a sentence less harsh 10 than his original sentence, and therefore his sentence did not violate the ex post facto clause. 11 Id. at 4-5. However, the Ninth Circuit was not convinced that Arizona’s parole system 12 allows Petitioner a meaningful opportunity to obtain parole in accordance with Miller and 13 Montgomery. Id. at 5. The Ninth Circuit directed this Court on remand to consider 14 Petitioner’s Eighth Amendment Claim “in the first instance, with the [Court] directed to 15 allow amendment of the petition as necessary.” Id. 16 In March 2020, Petitioner moved the Court for an order releasing him from custody 17 pending adjudication of the Eighth Amendment Claim in his Amended Petition. (Mot. for 18 Expedited Hr’g and Release from Custody, Doc. 73.) The Court denied Petitioner’s 19 request. The Court adopted Magistrate Judge D. Thomas Ferraro’s reasoning in his R. & 20 R. that Petitioner’s Eighth Amendment Claim was unripe because he had not yet had a 21 parole hearing and thus was unlikely to succeed on the merits of his Eighth Amendment 22 Claim. (R. & R., Doc 79 at 4-6; Order, Doc. 95 at 2.) 23 On September 14, 2020, the Board of Executive Clemency (“BOEC”) held a parole 24 hearing and denied Petitioner’s request for parole. (Second Suppl. Ex. in Supp. of Mot. for 25 Recons. of Denial of his Mot. for Expedited Hr’g and Release from Custody, Doc. 98.) 26 Thereafter, Petitioner moved this Court to reconsider the denial of his motion for release. 27 (Doc. 96.) 28 Magistrate Judge Ferraro issued a R. & R. on Petitioner’s motion for reconsideration 1 recommending it be denied; Magistrate Judge Ferraro found Petitioner’s Eighth 2 Amendment Claim unexhausted and not procedurally defaulted in the Arizona state courts. 3 (Doc. 107 at 1, 7-9.) Judge Ferraro had again determined Petitioner failed to show a 4 likelihood of success on the merits of his habeas claim. Judge Ferraro recommended the 5 Court deny Petitioner’s motion for reconsideration. Id. at 11. 6 In the instant Motion, Petitioner requests his Amended Petition be stayed while he 7 exhausts his Eighth Amendment Claim in the state courts. (Doc. 108 at 1, 3.) Respondent 8 argues Petitioner’s Motion is frivolous, urging that his Eighth Amendment Claim is 9 precluded, non-cognizable, or meritless. (Doc. 112 at 6-10.) 10 II. Legal Standard 11 A. Rhines Stay-and-Abeyance 12 Federal courts may not “adjudicate mixed petitions for habeas corpus, that is, 13 petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 14 269, 273, 125 S. Ct. 1528, 1532–33, 161 L. Ed. 2d 440 (2005) (citing Rose v. Lundy, 455 15 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982)). Instead, courts have discretion to stay 16 a habeas petition when it partially or fully consists of unexhausted claims. Mena v. Long, 17 813 F.3d 907, 912 (9th Cir. 2016). “Stay and abeyance [is] available only in limited 18 circumstances.” Rhines, 544 U.S. at 277. Courts must use their discretion sparingly, 19 because “routinely granting stays would undermine the [Antiterrorism and Effective Death 20 Penalty Act of 1996’s] goals of encouraging finality and streamlining federal habeas 21 proceedings.” Blake v. Baker, 745 F.3d 977, 981–82 (9th Cir. 2014). 22 Stay-and-abeyance is appropriate where the habeas petitioner has shown: (1) “good 23 cause for his failure to exhaust,” (2) that the unexhausted claim is “potentially meritorious,” 24 and (3) there is “no indication that the petitioner engaged in intentionally dilatory litigation 25 tactics.” Rhines, 544 U.S. at 277–78. A petitioner is not required to establish “extraordinary 26 circumstances” to show good cause. Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005). 27 Instead, “good cause turns on whether the petitioner can set forth a reasonable excuse, 28 supported by sufficient evidence, to justify” his failure to exhaust the claim. Blake, 745 1 F.3d at 982 (citing Pace v. DiGuglielmo, 544 U. S. 408, 416, 425 S. Ct. 1807, 161 L. Ed. 2 2d 669 (2005)). However, “even if a petitioner had good cause for that failure, the district 3 court would abuse its discretion if it were to grant him a stay when his unexhausted claims 4 are plainly meritless.” Rhines, 544 U.S. at 277. 5 B. Exhaustion 6 The Rhines stay-and-abeyance procedure applies to petitions in which one or more 7 claims have not been exhausted in the state courts. Mena, 813 F.3d at 912. A petitioner’s 8 claim is exhausted if “(1) he has fairly presented his federal claim to the highest state court 9 with jurisdiction to consider it or (2) he demonstrates that no state remedy remains 10 available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (internal quotation and 11 citations omitted). 12 The first type of exhaustion requires that “claims must be fairly presented” to the 13 state courts in a procedurally appropriate manner. White v. Ryan, No. CV-09-2167-PHX- 14 FJM-LOA, 2010 WL 1416054, at *4 (D. Ariz. Mar. 16, 2010), report and recommendation 15 adopted, No. CV-09-02167-PHX-FJM, 2010 WL 1416037 (D. Ariz. Apr. 8, 2010) (citing 16 Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Baldwin 17 v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) (stating that “[t]o 18 provide the State with the necessary ‘opportunity,’ the prisoner must “fairly present” her 19 claim in each appropriate state court ... thereby alerting the court to the federal nature of 20 the claim.”)). “In Arizona, unless a prisoner has been sentenced to death, the “highest 21 court” requirement is satisfied if the petitioner has presented his federal claim to the 22 Arizona Court of Appeals either on direct review or in a petition for post-conviction relief.” 23 White, 2010 WL 1416054, at *4 (citing Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 24 2004); Crowell v. Knowles, 483 F.Supp.2d 925 (D.Ariz.2007) (discussing Swoopes v. 25 Sublett, 196 F.3d 1008, 1010 (9th Cir.1999))). 26 A petitioner fairly presents his claim when “he presents the claim: (1) to the proper 27 forum; (2) through the proper vehicle; and (3) by providing the proper factual and legal 28 basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations 1 omitted). For a federal constitutional claim, this means that the petitioner must present the 2 state courts with the federal legal basis for his claim. Duncan v. Henry, 513 U.S. 364, 365– 3 66, 115 S. Ct. 887, 887–88, 130 L. Ed. 2d 865 (1995); see also Galvan v. Alaska Dept. of 4 Corrections, 397 F.3d 1198, 1205 (9th Cir. 2005) (“To exhaust a federal constitutional 5 claim in state court, a petitioner has to have, at least, explicitly alerted the court that she 6 was making a federal constitutional claim.”). 7 The other type of exhaustion is “technical exhaustion,” or exhaustion due to 8 procedural bar. McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *3 9 (D. Ariz. Feb. 26, 2020). A Rhines stay is not appropriate if a petitioner’s claims are barred 10 from the state courts for procedural reasons. See, e.g., id. at *9 (petitioner not entitled to a 11 stay where no state remedies available for constitutional claims). A petitioner need not 12 have presented a claim to the state courts for it to be technically exhausted; a claim is 13 exhausted if a return to the state courts would be “futile” pursuant to the courts’ procedural 14 rules. Teague v. Lane, 489 U.S. 288, 297–99, 109 S. Ct. 1060, 1068-69, 103 L. Ed. 2d 334 15 (1989); see also Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (observing that if 16 the state courts would find the petitioner’s claims procedurally barred, the claims are 17 technically exhausted). 18 III. Analysis 19 A. Petitioner’s Eighth Amendment Claim is Unexhausted 20 Respondent contends Petitioner’s Eighth Amendment Claim is exhausted because 21 it was adjudicated by the Arizona Court of Appeals3 in Petitioner’s June 30, 2013 PCR 22 petition. (Doc. 112 at 8-9.) As mentioned above, in that PCR proceeding, the superior court 23 had found that Ariz. Rev. Stat. § 13-716 failed to remedy the Eighth Amendment violation 24 Petitioner claimed was inherent in his original sentence and ordered Petitioner resentenced. 25 Id. at 761. However, the Arizona Court of Appeals found the Eighth Amendment violation 26 remedied by the enactment of Ariz. Rev. Stat. § 13-716 and thus vacated the superior 27 court’s grant of post-conviction relief. Id. at 755. 28 3 See Vera, 334 P.3d 754. 1 Here, unlike in his 2013 PCR claim, Petitioner seeks to assert (and therefore he must 2 exhaust) his claim that Arizona’s parole scheme fails to provide him with an opportunity 3 to obtain parole within the meanings of Miller and Montgomery and, as a result, violates 4 his Eighth Amendment right to be free from cruel and unusual punishment. (Doc. 108 at 5 1.) 6 For a habeas petitioner to exhaust his claim, the “federal claim must be fairly 7 presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 8 L. Ed. 2d 438 (1971). “Only if the state courts have had the first opportunity to hear the 9 claim sought to be vindicated in a federal habeas proceeding does it make sense to speak 10 of the exhaustion of state remedies.” Id. A claim is not fairly presented if a petitioner has 11 not provided “the proper factual and legal basis for the claim.” Insyxiengmay, 403 F.3d at 12 668. 13 The Eighth Amendment Claim Petitioner seeks to exhaust has a different factual 14 and legal basis than the claim he presented to the Arizona courts in 2013. The Court thus 15 finds that Petitioner’s Eighth Amendment Claim was not “fairly presented” and is 16 unexhausted.4 Because Petitioner’s Eighth Amendment Claim has not been fairly presented 17 to the state courts, the Court must determine whether there is an available remedy for the 18 claim in the state courts or if it is procedurally barred. 19 Respondent urges that Petitioner is actually challenging his 2020 parole proceedings 20 (rather than his sentence), and thus the state courts would find his claim barred as non- 21 cognizable under Arizona Rule of Criminal Procedure 32.1 (a), (c) and (e). (Doc. 112 at 22 7.) As explained herein, the Court disagrees. 23 Miller and Montgomery mandate that juveniles sentenced to life be afforded a 24 meaningful opportunity for parole. See Miller, 567 U.S. at 489; Montgomery, 577 U.S. at 25 212-13. For instance, Miller requires a sentencer “to take into account how children are 26 different, and how those differences counsel against irrevocably sentencing them to a 27 4 As explained in his R. & R. on Petitioner’s motion for reconsideration, Magistrate Judge 28 Ferraro found that Petitioner’s current claim “has a different factual, legal, and evidentiary posture and therefore is not exhausted.” (Doc. 107 at 6.) 1 lifetime in prison.” 567 U.S. at 480. In doing so, Miller commanded that a state must 2 provide “some meaningful opportunity to obtain release based on demonstrated maturity 3 and rehabilitation.” Id. at 479 (quoting Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 4 2011, 2030, 176 L. Ed. 2d 825 (2010)); see also Montgomery, 577 U.S. at 212 (“The 5 opportunity for release will be afforded to those who demonstrate the truth of Miller's 6 central intuition—that children who commit even heinous crimes are capable of change.”). 7 The Arizona Rules of Criminal Procedure provide grounds for post-conviction relief 8 where a sentence is unconstitutional, is not authorized by law, and where newly discovered 9 facts would have changed the sentence. Ariz. R. Crim. P. 32.1 (a), (c) and (e). While 10 Petitioner does contend that his parole proceedings were unfair, the core of his Eighth 11 Amendment Claim is that the unconstitutional nature of his sentence has not been remedied 12 because Ariz. Rev. Stat. § 13-716 does not allow him a meaningful opportunity for parole 13 within the meaning of Miller and Montgomery. (Doc. 22 at 20-23; Doc. 108 at 1.) The 14 Court finds that Petitioner is challenging his sentence, and thus his Eighth Amendment 15 Claim is cognizable. 16 Respondent also contends Petitioner’s Eighth Amendment Claim is moot because 17 he was given a parole hearing. (Doc. 112 at 8.) As stated above, the Ninth Circuit remanded 18 this case for the Court to determine “whether A.R.S. § 13-716, as implemented by the 19 Arizona Department of Corrections, actually provides an opportunity for Vera to obtain 20 parole within the meaning of Miller and Montgomery.” (Doc. 75-1 at 5.) It is not enough 21 that Petitioner was afforded a parole hearing. Rather, the Ninth Circuit instructed this Court 22 to consider whether Ariz. Rev. Stat. § 13-716 as implemented by the Arizona Department 23 of Corrections complies with the United States Constitution.5 Thus, the Court finds that the 24 state courts would not find Petitioner’s Eighth Amendment Claim moot. The state courts 25 should be given the opportunity to decide this claim in the first instance. See Rose, 455 26 U.S. at 515 (“federal courts should not consider a claim in a habeas corpus petition until

27 5 The Court finds this is an issue that could not have been decided by the BOEC presiding over Petitioner’s hearing. For instance BOEC has power to make parole decisions as to 28 individuals but does not have the power to decide a statute’s constitutionality. See Ariz. Rev. Stat. § 31-402 (setting forth powers of the BOEC). 1 after the state courts have had an opportunity to act.”). 2 B. The Rhines Factors Weigh in Favor of Issuing a Stay 3 As mentioned, stay-and-abeyance is appropriate where the habeas petitioner has 4 shown: (1) “good cause for his failure to exhaust,” (2) that the unexhausted claim is 5 “potentially meritorious,” and (3) there is “no indication that the petitioner engaged in 6 intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277–78. As explained below, 7 the Court determines the Rhines factors are satisfied. 8 1. Petitioner’s failure to exhaust is supported by good cause 9 The first Rhines factor seeks to determine whether a petitioner has “good cause” to 10 excuse his failure to exhaust the claim in the state courts. Rhines, 544 U.S. at 277. “Good 11 cause” requires that petitioners have a legitimate reason for failure to exhaust, and “turns 12 on whether the petitioner can set forth a reasonable excuse, supported by sufficient 13 evidence, to justify that failure.” Blake, 745 F.3d at 982. 14 A habeas petition will not be granted if it rests on an unripe claim. See Sanchez- 15 Alanis v. Apker, 739 F. App'x 388, 389 (9th Cir. 2018). A claim is not ripe when it “rests 16 upon contingent future events that may not occur as anticipated, or indeed may not occur 17 at all.” See id. (citing Texas v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 1259, 18 140 L.Ed.2d 406 (1998) (stating that “[a] claim is not ripe for adjudication if it rests upon 19 contingent future events that may not occur as anticipated, or indeed may not occur at all”). 20 Petitioner’s Eighth Amendment Claim did not become ripe until he was denied 21 parole in his 2020 parole hearing. Respondent concedes as much. (Doc. 102 at 2.) Because 22 Petitioner’s Eighth Amendment Claim could not have been raised in the state courts prior 23 to his parole hearing, Petitioner’s failure to exhaust is supported by good cause. 24 2. Petitioner’s Eighth Amendment Claim is not plainly meritless 25 The second Rhines factor seeks to determine whether a petitioner’s claim is “plainly 26 meritless.” Id. at 277. A federal court should refrain from substituting its judgment for the 27 state courts on the merits of an unexhausted claim “unless it is perfectly clear that the 28 petitioner has no chance of obtaining relief.” Cassett v. Stewart, 406 F.3d 614, 624 (9th 1 Cir. 2005). 2 Respondent argues Petitioner’s Eighth Amendment Claim is meritless because 3 Miller and Montgomery do not apply to his sentence or parole hearing. (Doc. 112 at 10-11.) 4 However, the Ninth Circuit recognized Miller and Montgomery as applicable when it held 5 it was “not persuaded” that “A.R.S. § 13-716, as implemented by the Arizona Department 6 of Corrections, actually provides an opportunity for Vera to obtain parole within the 7 meaning of Miller and Montgomery.” (Doc. 75-1 at 5.) 8 The Court also rejects Respondent’s contention that the Arizona Court of Appeal’s 9 2014 ruling on Petitioner’s sentence renders his Eighth Amendment Claim meritless under 10 stare decisis. (Doc. 112 at 10.) Stare decisis requires that lower courts follow their appellate 11 courts’ determinations of law where the underlying law has not changed. Nammo Talley 12 Inc. v. Allstate Ins. Co., 99 F. Supp. 3d 999, 1003 (D. Ariz. 2015) (internal citation omitted). 13 Arizona’s stare decisis doctrine bars reconsideration when “the facts and issues are 14 substantially the same as those on which the first decision rested.” In re Monaghan's Est., 15 227 P.2d 227, 228 (Ariz. 1951). 16 In this case, as stated above, Petitioner’s Eighth Amendment Claim has a different 17 factual and legal basis from the claim adjudicated by the Arizona state courts in 2013-2014. 18 See Vera, 334 P.3d at 760 (deciding whether “the trial court exercised discretion, consistent 19 with Miller . . . ,” in sentencing Petitioner, further recognizing that “when [Petitioner’s] 20 sentence was imposed, the court had been mistaken about the availability of parole . . . .”). 21 A claim is fairly presented if the court is informed of “the proper factual and legal basis for 22 the claim.” Insyxiengmay, 403 F.3d at 668. In his brief to the Arizona Court of Appeals in 23 2014, Petitioner did not fairly present his claim that Arizona’s parole system fails to satisfy 24 the requirements of Miller/Montgomery and thus his sentence is unconstitutional. Rather, 25 he claimed that his mandatory life sentence was unconstitutional. (Resp. to Pet. For 26 Review, Doc. 34-1 at 25-47.) Because the facts and issues that form the basis of the Eighth 27 Amendment Claim are not substantially the same as those presented in Petitioner’s earlier 28 PCR proceeding, stare decisis does not preclude the Eighth Amendment Claim. 1 The state courts must first determine whether Arizona law provides Petitioner an 2 opportunity to obtain parole as required by the Eighth Amendment to the United States 3 Constitution under Miller/Montgomery. See Castille, 489 U.S. at 351 (to exhaust a habeas 4 claim, a petitioner must afford the state the first opportunity to rule upon the merits of the 5 claim by fairly presenting the claim to the state's highest court in a procedurally correct 6 manner). 7 3. Petitioner did not engage in dilatory litigation tactics 8 The third Rhines factor seeks to determine whether “the petitioner engaged in 9 intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. The Rhines Court warned 10 against issuing stays to capital petitioners who “might deliberately engage in dilatory 11 tactics to prolong their incarceration and avoid execution of the sentence of death.” Id. at 12 277-78. Petitioner here is not a capital petitioner. The Court agrees with and accepts 13 Petitioner’s assertion that he “has every incentive to move the litigation rapidly and will 14 continue to do so.” (Doc. 118 at 3.) Finally, district courts are required to put reasonable 15 time limits on Rhines stays. Rhines, 544 U.S. at 278. The Court will do so here. 16 IV. Petitioner’s Motion for Reconsideration 17 Before filing the instant Motion, Petitioner moved for reconsideration of Senior 18 Judge Zapata’s Order adopting Magistrate Judge Ferraro’s R. & R. on his motion for 19 release on bail pending disposition of his Amended Petition. (Docs. 95, 96.) Judge Zapata 20 agreed with Judge Ferraro’s finding that Petitioner’s Eighth Amendment Claim was not 21 yet ripe because at the time Petitioner filed his motion for release, he had not yet had a 22 parole hearing. (Id.) Although Petitioner has now had a parole hearing, he has conceded 23 that his Eighth Amendment Claim is unexhausted. (Doc. 118 at 3.) 24 In order to grant a habeas petitioner’s request for release pending adjudication of a 25 habeas petition, a petitioner must establish, inter alia, a likelihood of success on the merits. 26 See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724 (1987) 27 (In deciding “whether a . . . habeas petitioner should be released pending the court's 28 disposition . . . , our approach has been to follow the general standards for staying a civil judgment... . [T]he factors regulating the issuance of a stay are generally the same: (1) || whether the stay applicant has made a strong showing that he is likely to succeed on the || merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; 5 || and (4) where the public interest lies.” (additional citations omitted)). Because Petitioner’s 6 || Eighth Amendment Claim is unexhausted, he cannot establish that he is likely to succeed □□ on the merits of his Eighth Amendment Claim. Additionally, as set forth in Magistrate 8 || Judge Ferraro’s R. & R. on Petitioner’s motion for release, which was adopted in full by Senior Judge Zapata, it is unclear that the district court has jurisdiction to grant a habeas 10 || petitioner’s request for release on bail pending adjudication of his habeas petition. (Docs. 11}} 79, 95.) 12 The Court finds it appropriate to deny Petitioner’s motion for reconsideration. V. Conclusion 14 Accordingly, 15 IT IS HEREBY ORDERED GRANTING Petitioner’s Motion for Stay of All 16 || Proceedings and Deadlines (Doc. 108). This action is stayed pending further Order of this || Court. Petitioner is required to diligently exhaust his Eighth Amendment Claim in the state 18 || courts. Petitioner shall file a status report with this Court no later than October 1, 2021 and 19 || every 120 days thereafter regarding the status of the state court proceedings. 20 IT IS FURTHER ORDERED WITHDRAWING the reference to Magistrate □□ Judge Ferraro, TERMINATING Magistrate Judge Ferraro’s Report and Recommendation on Petitioner’s motion for reconsideration (Doc. 107), DENYING Petitioner’s motion for 23 || reconsideration (Doc. 96), and GRANTING IN PART Petitioner’s motion for a status 24 || conference (Doc. 106) to the extent that this Order provides Petitioner with the status of 25 || this matter. 26 Dated this 26th day of July, 2021. 27

onorable John C. Hinderaker United States District Judge -13-