Fitzgerald v. Thornell ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Vincent Fitzgerald, No. CV-19-05219-PHX-MTL 10 Petitioner, ORDER 11 v. DEATH-PENALTY CASE 12 Ryan Thornell, et al., 13 Respondents. 14 15 Before the Court is Petitioner John Vincent Fitzgerald’s combined motion to stay 16 and hold this case in abeyance until he exhausts certain habeas claims in state court (Doc. 17 60 at 1–19) and for authorization to have his habeas counsel represent him in state court 18 (id. at 1, 19–22). Respondents oppose the former and take no position on the latter. (Doc. 19 66 at 1.) For the reasons below, the Court will deny both requests. 20 I. BACKGROUND 21 In 1993, the Arizona Legislature eliminated parole for felonies committed after 22 December 31, 1993. A.R.S. § 41-1604.09(I) (West 1993). In 1994, the United States 23 Supreme Court held in Simmons v. South Carolina that when a capital defendant’s future 24 dangerousness is at issue and state law bars his release on parole, due process entitles him 25 to inform the jury—through argument or jury instruction—that he would be ineligible for 26 parole if not sentenced to death. 512 U.S. 154, 156, 177–78 (1994); see also Cruz v. Arizona 27 (Cruz II), 598 U.S. —, 143 S. Ct. 650, 655 (2023). 28 Years after enactment of A.R.S. § 41-1604.09(I) and the decision in Simmons, a 1 grand jury indicted Fitzgerald for a 2005 burglary and murder, and the State noticed the 2 intent to seek a death sentence for the murder. (R.O.A. 4, 25.) A jury found Fitzgerald 3 guilty as charged. (R.O.A. 469–70.) At the penalty phase for the murder, the court declared 4 a mistrial. State v. Fitzgerald, 303 P.3d 519, 521 (Ariz. 2013). As a result, a new jury had 5 to be selected for a new penalty phase. 6 In selecting a jury for the new penalty phase, prospective jurors were told in a 7 questionnaire that if the jury did not sentence Fitzgerald to death, the trial court would 8 sentence him to life in prison, either with or without “the possibility of release.” (R.O.A. 9 644 at 10, emphasis added.) At voir dire, the court also told the prospective jurors that if 10 not sentenced to death for the murder, the court would sentence Fitzgerald to life in prison, 11 either with or without the “possibility of parole,” despite Fitzgerald being parole ineligible. 12 (R.T. 5/24/10 at 13; R.T. 5/25/10 at 12; R.T. 5/26/10 at 7–8, emphasis added.) After 13 empaneling a new penalty-phase jury, the court, without objection, instructed the jury that 14 if it spared Fitzgerald’s life, the court would sentence him to life in prison, either with or 15 without “the possibility of release.” (R.T. 6/2/10 at 39–40, 54–55; R.T. 8/18/10 at 30.) The 16 court explained that life in prison without the possibility of release meant that he would be 17 ineligible for release “on any basis,” including parole. (R.T. 6/2/10 at 40.) At no point did 18 Fitzgerald seek a Simmons instruction, or to tell the jury that he was parole ineligible. 19 The jury sentenced Fitzgerald to death. Fitzgerald, 303 P.3d at 521, ¶ 3. Fitzgerald 20 did not raise a Simmons claim on direct appeal or on postconviction review (“PCR”). (See 21 Opening Brief; R.O.A. 877.) Nor did he receive relief in either proceeding. (R.O.A. 916.) 22 In 2015, the Arizona Supreme Court held in State v. Lynch (Lynch I) that a trial 23 court did not err in refusing to give a Simmons instruction, citing A.R.S. § 41-1604.09(I), 24 because the defendant was eligible for other forms of release, such as clemency. 357 P.3d 25 119, 138 (Ariz. 2015) (citing A.R.S. § 13-703(A), renumbered as § 13-751(A)). But the 26 United States Supreme Court reversed Lynch I, holding that future clemency, or the 27 enactment of a statute restoring parole, did not “diminish[ ] a capital defendant’s right to 28 inform a jury of his parole ineligibility.” Lynch v. Arizona (Lynch II), 578 U.S. 613, 615 1 (2016) (citing Simmons, 512 U.S. at 166, 177). 2 In 2019, Fitzgerald commenced this habeas case, and the Court appointed the 3 Arizona Federal Public Defender’s Office to represent him but barred habeas counsel from 4 representing Fitzgerald “in state forums or prepar[ing] any state court pleadings” absent 5 the Court’s “express authorization.” (Doc. 1; Doc. 5 at 1). In July 2020, Fitzgerald filed his 6 initial habeas petition. (Doc. 21.) Meanwhile, in April 2020, the Arizona Supreme Court 7 agreed to review State v. Cruz (Cruz I), CR 17-0567-PC (Ariz.), to address whether Lynch 8 II was a “significant change in the law” under Arizona Rule of Criminal Procedure 32.1(g), 9 so as to bar a successive PCR raising a raising a Lynch II claim.1 10 In June 2021, the Arizona Supreme Court held in Cruz I that Lynch II was not a 11 significant change in the law under Rule 32.1(g). 487 P.3d 991 (Ariz. 2021). In October, 12 2022, Fitzgerald amended his habeas petition, alleging in Claim 14 that the trial court 13 violated his Fourteenth Amendment due process rights by failing to give a Simmons jury 14 instruction. (Doc. 35 at 282–90.) He acknowledged that he did not seek such an instruction 15 or raise a Simmons claim in state court. (Doc. 35 at 280, 282.) 16 In 2023, the Supreme Court reversed the Arizona Supreme Court’s holding in Cruz 17 I, that Lynch II “was not a significant change in the law for purposes of Rule 32.1(g)” and 18 that Cruz I was not based on an adequate and independent state-law ground as to bar Cruz’s 19 filing of a successive PCR petition asserting a Lynch II claim. Cruz v. Arizona (Cruz II), 20 598 U.S. 17, 143 S. Ct. 650, 655 (2023) (quoting Ariz. R. Crim. P. 32.1(g)). 21 The Court vacated “the judgments” and remanded “the cases” of other Arizona 22 death row prisoners “to the Superior Court of Arizona, Maricopa County for further 23 consideration in light” of Cruz II. Burns v. Arizona, 21-847, — U.S. —, 143 S. Ct. 997 24 (2023) (Mem.).2 In light of Cruz II, Fitzgerald filed his combined motion, which is fully 25 26 1 Under Rules 32.1(g) and 32.2(b), a defendant may obtain relief on successive PCR if an applicable, “significant change in the law . . . would probably overturn the defendant’s 27 judgment or sentence.” Ariz. R. Crim. P. 32.1(g) and 32.2(b). 28 2 Prisoners Johnathan Burns, Steve Boggs, Ruben Garza, Fabio Gomez, Steven Newell, and Stephen Reeves filed a joint petition for a writ of certiorari based on Cruz II. 1 briefed. (Docs. 62–63, 66–67.) 2 II. APPLICABLE LAW 3 A. Rhines Stay 4 Under Rhines v. Weber, the Court may stay a habeas case that contains both 5 exhausted and unexhausted claims while the petitioner exhausts his unexhausted claims in 6 state court, before returning to the habeas court for review of the fully exhausted petition. 7 544 U.S. 269, 271–79 (2005). A Rhines stay is proper only if the petitioner shows (1) “good 8 cause” for the failure to exhaust, (2) the unexhausted claim is “potentially meritorious,” 9 and (3) the petitioner did not “engage[] in intentionally dilatory litigation tactics.” Id. at 10 277–78. Because a Rhines stay applies solely to a petition containing both exhausted and 11 unexhausted claims, i.e., a mixed petition, this Court must first decide whether any of the 12 claims that Fitzgerald seeks to exhaust are unexhausted. See King v. Ryan, 564 F.3d 1133, 13 1140 (9th Cir. 2009); see also, e.g., Bearup v. Shinn, No. CV-16-03357-PHX-SPL (D. 14 Ariz. Jan. 26, 2023) (Doc. 150). 15 B. Exhaustion 16 A petitioner has not exhausted a habeas claim in state court “if he has the right under 17 the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. 18 § 2254(c). A claim is exhausted if (1) it has been fairly presented to the highest state court 19 with jurisdiction to consider it or (2) no state remedy remains available to exhaust the claim. 20 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). No state remedy remains available if 21 the state’s procedural rules bar a state court from considering the claim, resulting in the 22 claim being “technically exhausted.” See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (citing 23 Gray v. Netherland, 518 U.S. 152, 161 (1996)); Coleman v. Thompson, 501 U.S. 722, 732 24 (1991) (citing 28 U.S.C. § 2254(b); Engle v. Isaac, 456 U.S. 107, 125–26 n.28 (1982)) 25 (claims defaulted in state court); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007). 26 Hence, a Rhines stay should not be granted if a petition contains only claims that are 27 actually, or technically, exhausted. See, e.g., Pritchett v. Gentry, No. 2:17-cv-01694-JAD- 28 DJA, 2022 WL 4366996, at *4 (D. Nev. Sept. 21, 2022) (noting “[t]he point of [the] stay 1 is to allow” presentment of “unexhausted claims” in state court); White v. Ryan, No. CV- 2 09- 2167-PHX-FJM (LOA), 2010 WL 1416054, at *12 (D. Ariz. Mar. 16, 2010) (denying 3 Rhines stay of a petition that has only exhausted or technically exhausted claims). 4 C. Arizona’s Bar on Successive Postconviction-Relief Claims 5 Rule 32 of the Arizona Rules of Criminal Procedure governs postconviction review 6 for those convicted and sentenced following a trial. Ariz. R. Crim. P. 32.1. As relevant 7 here, postconviction relief is available for a constitutional violation under Rule 32.1(a), id. 8 at 32.1(a); when “newly discovered material facts probably exist” that “probably would 9 have changed the judgment or sentence,” id. at (e); and when there is “a significant change 10 in the law that, if applicable to the defendant’s case, would probably overturn the 11 defendant’s judgment or sentence,” id. at (g). 12 A constitutional claim under Rule 32.1(a) is precluded if it was “finally adjudicated 13 on the merits in an appeal or in any previous post-conviction proceeding,” Ariz. R. Crim. 14 P. 32.2(a)(2), or if it was “waived at trial or on appeal, or in any previous post-conviction 15 proceeding, except when the claim raises a violation of a constitutional right that can only 16 be waived knowingly, voluntarily, and personally by the defendant,” id. at (3). A claim 17 under Rules 32.1(e) or (g) is precluded under Rule 32.2(a)(2) but not generally precluded 18 under Rule 32.2(a)(3). Ariz. R. Crim. P. 32.2(b). 19 As to claims of ineffective assistance of trial counsel, Arizona’s “basic rule is that 20 where ineffective assistance of counsel claims [were] raised, or could have been raised, [on 21 the first PCR], subsequently raised claims of ineffective assistance will be deemed waived 22 and precluded.” State v. Spreitz, 39 P.3d 525, 526 (Ariz. 2002) (emphasis omitted); see 23 also Stewart v. Smith, 46 P.3d 1067, 1071, ¶ 12 (Ariz. 2002) (“The ground of ineffective 24 assistance of counsel cannot be raised repeatedly.”). Indeed, in Smith, the Arizona Supreme 25 Court held that courts must find ineffectiveness of trial counsel claims raised in successive 26 PCRs precluded “without examining facts,” including when an ineffective-assistance-of- 27 trial-counsel claim on successive PCR falls within Rule 32.2(a)(3)’s personal-waiver 28 exception. 46 P.3d at 1071, ¶ 12. 1 III. DISCUSSION 2 Fitzgerald argues that his Simmons/Lynch II claim, as well as seven of his 3 ineffective-assistance-of-trial-counsel claims, warrant a Rhines stay.3 (Doc. 63 at 1–19.) 4 A. Fitzgerald’s Simmons/Lynch II Claim is Unexhausted 5 Fitzgerald argues that his Simmons/Lynch II is now unexhausted based on Cruz II. 6 Respondents assert that the Simmons/Lynch II claim remains exhausted despite Cruz II, in 7 essence, because it is meritless. (Doc. 66 at 4–5.) 8 The Court first finds Fitzgerald’s Simmons/Lynch II claim is unexhausted under 9 Cruz II, as he may now pursue it on a successive PCR under Rules 32.1(g) and 32.2(b) 10 because the existence of a significant change in the law permits review on a successive 11 PCR. See Cruz II, 143 S. Ct. at 658 (acknowledging that “Rule 32.1(g) allows defendants 12 to file a successive or untimely postconviction petition if there has been ‘a significant 13 change in the law’”); see also, e.g., State v. Lawrence, No. 2 CA-CR 2016-0080-PR, 2016 14 WL 3220970, at *2, ¶ 7 (Ariz. Ct. App. June 10, 2016) (citing Ariz. R. Crim. P. 32.1(g)) 15 (stating that “under Rule 32.2(b), a defendant may avoid preclusion by showing . . . a 16 significant change in the law”); State v. Shrum, 203 P.3d 1175, 1178 (Ariz. 2009) (“The 17 rationale for the Rule 32.1(g) exception from waiver and preclusion is apparent: A 18 defendant is not expected to anticipate significant future changes of the law in his of-right 19 PCR proceeding or direct appeal.”). See also Van Winkle, 2023 WL 3321709, at *4 (citing 20 28 U.S.C. § 2254(c); cf, Newman v. Norris, 597 F.Supp.2d 890, 895 (W.D. Ark. 2009) 21 (granting Rhines stay to exhaust in state court as a matter or comity); Rodriguez v. Uhler, 22 15cv09297 (GBD) (DF), 2017 WL 9807068, at *8 (S.D.N.Y. Oct. 23, 2017) (same). 23 B. Fitzgerald’s Simmons/Lynch II Claim Lacks Potential Merit 24 Although Fitzgerald is not precluded from filing a successive PCR in state court to 25 exhaust Claim 14, Claim 14 lacks potential merit to support a Rhines stay. See Rhines, 544 26 27 3 In Claim 14, Fitzgerald also asserts that the repeated incorrect jury instructions regarding his eligibility for parole also violated his Eighth Amendment right to a reliable penalty 28 phase. (Doc. 35 at 282–90.) Because Fitzgerald does not seek a Rhines stay to exhaust this subclaim, the Court does not consider it here. 1 U.S. at 277 (“[E]ven if a petitioner had good cause for that failure, th[is Court] would abuse 2 its discretion if it were to grant [petitioner] a stay when his unexhausted claims are plainly 3 meritless.”). Although the “potential merit” standard is not onerous, id., a claim lacks 4 potential merit if “it is perfectly clear that the [petitioner] does not raise even a colorable 5 federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Thus, a claim has 6 potential merit “unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’” 7 See Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017) (quoting Cassett, 406 F.3d at 624). 8 Respondents argue that the Simmons/Lynch II claim lacks potential merit under State v. 9 Bush, 423 P.3d 370 (Ariz. 2018), because Fitzgerald did not seek to have the jury informed 10 of his parole ineligibility. (Doc. 66 at 4–6.) In that case, the Arizona Supreme Court held 11 that Simmons requires only that a defendant be given the opportunity to rebut his alleged 12 future dangerousness by informing the jury of his parole ineligibility. Bush, 423 P.3d at 13 387–88. Fitzgerald asserts that even though he did not request a Simmons jury instruction 14 at trial or to raise his parole eligibility to the jury, the trial court violated Simmons by 15 incorrectly instructing the jury that he was parole eligible. (Doc. 62 at 9–10.) That incorrect 16 instruction, he argues, “offends basic notions of fairness and due process.” (Doc. 63 at 9– 17 10.) 18 “Capital sentencing proceedings must of course satisfy” due process. Clemons v. 19 Mississippi, 494 U.S. 738, 746 (1990). Due process “expresses the requirement of 20 ‘fundamental fairness.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 21 18, 24 (1981). An incorrect jury instruction may deny such fairness if “‘the ailing 22 instruction by itself so infected the entire trial [such] that the resulting conviction violates 23 due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 24 U.S. 141, 147 (1973)). A capital defendant is also denied due process “when the death 25 sentence was imposed, at least in part, on the basis of information which [he] had no 26 opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362 (1977). 27 Under Simmons, due process entitles a capital defendant the opportunity to rebut 28 alleged future dangerousness by having the jury informed of the defendant’s parole 1 ineligibility. 512 U.S. at 156-78; see also Bush, 42 3 P.3d at 386-88, ¶¶ 69-75. Thus, 2 Simmons expressly flows from the opportunity to have a jury informed of the defendant’s 3 parole ineligibility. Simmons, 512 U.S. at 161 (Blackmun, J., joined by Stevens, Suter, and 4 Ginsburg, JJ.); id. at 175 (O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J., 5 concurring in judgment). 6 In Bush, the Arizona Supreme Court, parsing the Simmons plurality, found that 7 Justice O’Connor’s concurrence offered the “‘narrowest ground[]’ that ‘may be viewed as 8 [the] position taken by’ the [Supreme] Court on the issue of what due process requires in 9 this context.’” 423 P.3d at 387 (quoting Marks v. United States, 430 U.S 188, 193 (1977)).4 10 Thus, the Bush court held that “the due process right under Simmons merely affords a 11 parole-ineligible capital defendant the right to ‘rebut the State’s case’ (if future 12 dangerousness is at issue) by informing the jury that ‘he will never be released from prison’ 13 if sentenced to life.” Bush, 423 P.3d at 387 (quoting Simmons, 512 U.S. at 177, O’Connor, 14 J., concurring in the judgment); see also O’Dell v. Netherland, 521 U.S. 151, 159 (1997) 15 (noting that in Simmons “there was no opinion for the Court” and that four Justices merely 16 “concluded that the Due Process Clause required allowing the defendant to inform the 17 jury—through argument or instruction—of his parole ineligibility in the face of a 18 prosecution’s future dangerousness argument”). 19 The Arizona Supreme Court observed that in every case in which either it or the 20 United States Supreme Court had found reversible Simmons error, the trial court had “either 21 rejected the defendant’s proposed jury instruction regarding his ineligibility for parole, 22 prevented defense counsel ‘from saying anything to the jury about parole ineligibility’ or 23 both.” Id. at 388, ¶ 74 (citing Simmons, 512 U.S. at 175, Ginsburg, J., concurring); Lynch 24 II, 578 U.S. at 614 (both); Kelly v. South Carolina, 534 U.S. 246, 249 (2002) (refusal to 25 4 In Marks, the court noted, “When a fragmented Court decides a case and no single 26 rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments 27 on the narrowest grounds . . . .” (internal quotation omitted). This is known as the “Marks rule.” See e.g., Johnson v. City of Grants Pass, 72 F.th 868. 896 (9th Cir. 2023) (Collins, J. 28 dissenting); United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1139 (9th Cir. 2005) (Berzon, J., dissenting in part). 1 inform); Shafer v. South Carolina, 532 U.S. 36, 41–46 (2001) (citing both); State v. Hulsey, 2 408 P.3d 408, 435 (Ariz. 2018) (both); State v. Rushing, 404 P.3d 240, 249 (Ariz. 2017) 3 (refusal to inform); State v. Escalante-Orozco, 386 P.3d 798, 828 (Ariz. 2017) (refusal to 4 inform)). The Arizona Supreme Court denied Bush relief under Simmons because, 5 “[u]nlike in the aforementioned cases, the trial court neither refused to instruct, nor 6 prevented Bush from informing, the jury regarding his parole ineligibility.” Id., ¶ 75. 7 At Fitzgerald’s trial, the court incorrectly instructed jurors that he was eligible for 8 parole, when he was not. It did not, however, deny Fitzgerald the opportunity to have the 9 jury informed of his parole ineligibility through a curative instruction, as Fitzgerald did not 10 request one. Nor did he ask to inform the jury himself of such ineligibility. In short, 11 Fitzgerald’s Simmons/Lynch II claim lacks potential merit because Fitzgerald did not seek 12 to have the jury informed of his parole ineligibility either through a curative instruction or 13 argument to the jury. As the Fourth Circuit noted in Townes v. Murray, “[T]he defendant’s 14 right, under Simmons, is one of opportunity, not of result.” 68 F.3d 840, 850 (4th Cir. 1995). 15 To the extent Fitzgerald claims that the trial court denied him due process, it did not deny 16 him due process under Simmons. 17 Fitzgerald cites an array of case law to support his contentions to the contrary. (Doc. 18 63 at 9; Doc. 67 at 5–8 and n.2.) He asserts that Cruz II and the remand of the six cases in 19 Burns casts doubt on the interpretation of Simmons above, noting that four of those 20 petitioners never invoked Simmons at trial. (Doc. 67 at 5 n.2.) But the narrow issue raised 21 in Burns was “the same question presented” in Cruz II—“[w]hether the Arizona Supreme 22 Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post- 23 conviction relief [was] an adequate and independent state-law ground for the judgment.” 24 See Burns, Joint Petition for Writ of Certiorari, No. 21-847 (U.S. Oct. 4, 2021). Neither 25 Cruz II, nor Burns, held that a capital defendant’s failure to invoke Simmons at trial was 26 denied due process, where the trial court did not, sua sponte, give a Simmons instruction 27 and had inaccurately informed the jury that the defendant might be eligible for parole or 28 release if not sentenced to death. See United States v. Castillo, 69 F.4th 648, 657 (9th Cir. 1 2023) (“Surely, issues which are ‘neither brought to the attention of the court nor ruled 2 upon, are not to be considered as having been so decided as to constitute precedents,” 3 quoting United States v. Kirilyuk, 29 4th 1128, 1134 (9th Cir. 2022)). 4 Fitzgerald also cites Chief Justice Rehnquist’s dissent in Kelly v. South Carolina, 5 534 U.S. 246, 258-59 (2002), for the proposition that the majority had expanded the due 6 process right announced in Simmons to instances when the prosecutor had not argued future 7 dangerousness, but where evidence introduced to prove other elements of the case had a 8 tendency to put the defendant’s future dangerousness at issue. (Doc. 67 at 6–8.) But in 9 Kelly, the Supreme Court did not expand Simmons, as suggested by Fitzgerald, to impose 10 an affirmative duty on a court to sua sponte provide a Simmons instruction absent a 11 defendant’s request. Instead, counsel in Kelly had requested, and was denied, a Simmons 12 instruction. Chief Justice Rehnquist did not state that Kelly imposed that affirmative duty; 13 rather, the Chief Justice stated that Kelly expanded Simmons by applying Simmons even if 14 the state only implied—but did not expressly argue—the defendant’s future dangerousness. 15 The holding in Kelly did not alter the rule under Simmons that a defendant must invoke 16 Simmons at trial or provide a basis to distinguish Fitzgerald’s case from the holdings in 17 Bush and Simmons. 18 Fitzgerald also contends that Shafer renders his Simmons/Lynch II claim potentially 19 meritorious. (Doc. 67 at 6–8.) In Shafer, the defendant requested, but was denied, a 20 Simmons instruction. 532 U.S. at 41–42. The United States Supreme Court held “that 21 whenever future dangerousness is at issue in a capital sentencing proceeding under South 22 Carolina’s then-new scheme, due process require[d] that the jury be informed that a life 23 sentence carrie[d] no possibility of parole.” Id. at 51. The Supreme Court rejected the 24 state’s argument that Simmons was satisfied where, at closing argument, the defendant told 25 the jury that if his life was spared, he would “die in prison” after “spend[ing] his natural 26 life there.” Id. at 52–54. The Supreme Court explained that “[d]isplacement of [South 27 Carolina’s] ‘longstanding practice of parole availability’ remain[ed] a [then-] relatively 28 recent development, and ‘common sense tells us that many jurors might not know whether 1 a life sentence carries with it the possibility of parole.’” Id. at 52 (quoting Simmons, 512 2 U.S. at 177–78, O’Connor, J., concurring). “In sum, a life sentence for Shafer would permit 3 no ‘parole, community supervision, . . . early release program, . . . or any other credits that 4 would reduce the mandatory life imprisonment”; “this reality was not conveyed to Shafer’s 5 jury by the court’s instructions or by the arguments defense counsel was allowed to make.” 6 Id. at 54. The holding in Shafer did not alter the rule under Simmons that a defendant must 7 invoke Simmons at trial. 8 Fitzgerald further cites State v. Laney, in which the South Carolina Supreme Court 9 held: 10 [W]here a defendant’s future dangerousness is at issue in a 11 capital sentencing proceeding, and the only sentencing alternative to death available to the jury is life imprisonment 12 without parole, the trial judge shall charge the jury, whether 13 requested or not, that life imprisonment means until the death of the defendant without the possibility of parole. 14 15 627 S.E.2d 726, 730 (S.C. 2006). Although the Laney court imposed that requirement 16 following the decisions in Shafer and Kelly, neither of those cases altered the rule under 17 Simmons, or Gardner, that where future dangerousness is at issue, a defendant must invoke 18 Simmons in order to be afforded the opportunity to inform the jury of the defendant’s parole 19 ineligibility. The United States Supreme Court has not imposed the requirement in Laney. 20 Finally, Fitzgerald cites Bronshtein v. Horn, in which a federal district court in 21 Pennsylvania granted habeas relief on a Simmons claim even though “the petitioner did not 22 object at trial to the trial court’s failure to instruct the jury that life means life without 23 parole.” (Doc. 67 at 6–7, quoting No. CIV. A. 99-2186, 2001 WL 767593, at *18–21 and 24 n.23 (E.D. Pa. July 5, 2001), affirmed in part, reversed in part, and remanded, 404 F.3d 25 700, 719 (3d Cir. 2005) (affirming Simmons relief)). But in Bronshtein, the court concluded 26 that there was no procedural default sufficient to prevent it from considering Bronshtein’s 27 claims on the merits; that is, no adequate clearly established state bar applied as of the time 28 of waiver. 1 The court further found that in denying relief, the state court had not reached the 2 merits of his claims, id. at *11, and granted relief on Bronshtein’s Simmons claim, id. at 3 18-19. The court did not consider Bronshtein’s apparent failure to object at trial to the trial 4 court’s failure to give a Simmons instruction because the Supreme Court of Pennsylvania 5 had not relied on Bronshtein’s failure to object at trial in finding his claims procedurally 6 defaulted. See id., n.19, 23. And to the extent the habeas court considered his failure to 7 object at trial, this Court agrees with the Bush and Townes courts’ reading of Simmons: It 8 is the denial of a request for a Simmons instruction or denial of a motion to argue parole 9 ineligibility at trial, that denies due process, not the trial court’s failure to sua sponte give 10 a Simmons instruction. 11 In sum, Cruz II renders Fitzgerald’s Simmons/Lynch II claim unexhausted and his 12 petition mixed. That claim nonetheless lacks potential merit, where Fitzgerald failed to 13 invoke Simmons at trial, as discussed above. Accordingly, the Court will deny habeas relief 14 on that claim because it is plainly meritless. See 28 U.S.C. § 2254(b)(2) (allowing denial 15 of unexhausted claims on the merits); see also Lambrix v. Singletary, 520 U.S. 518, 524– 16 25 (1997) (explaining that the court may bypass the procedural default issue in the interest 17 of judicial economy when the merits are clear but the procedural default issues are not); 18 Peavy v. Madden, No.: 19cv0743-MMA (BGS), 2020 WL 4747722, at *14 (S.D. Cal. Aug. 19 17, 2020) (“A claim is plainly meritless where ‘it is perfectly clear that the petitioner has 20 no hope of prevailing.’ That same standard applies to whether this Court can deny an 21 unexhausted claim on the merits.”). 22 C. Ineffective-Assistance-of-Trial Counsel Claims 23 Fitzgerald also argues that seven of his ineffective-assistance-of-trial-counsel 24 claims warrant a Rhines stay (Claims 1, 8, 9, 11, 13, 15, and 16). (Doc. 35 at 57–107, 189– 25 244, 251–60, 270–81, 209–338; Doc. 63 at 14 n.2.) The PCR court denied relief on Claims 26 1, 8, 9, 11 (R.O.A. 877 at 28–39, 52–60, 74–76, 76–92; PFR 5 at 7–9, 15, 18–19, 19–24), 27 and the Arizona Supreme Court denied review (R.O.A. 916 at 4–17, 24–40, 64–67, 67–77; 28 PFR 22). As a result, Claims 1, 8, 9, and 11 are exhausted and therefore barred from relief 1 on successive PCR under Rule 32.2(a)(2). 2 Fitzgerald did not raise Claims 13, 15, or 16 as part of his ineffective-assistance 3 claims. (See R.O.A. 877; PFR 5.) Therefore, Claims 13, 15, and 16 are now technically 4 exhausted and barred on successive PCR. See Spreitz, 39 P.3d at 526; Smith, 46 P.3d at 5 1071, ¶ 12; see also, e.g., Armstrong, 2017 WL 1152820, at *6; Lopez v. Schriro, No. CV- 6 98-0072-PHX-SMM, 2008 WL 2783282, at *9 (D. Ariz. July 15, 2008), amended in part, 7 No. CV-98-0072-PHX-SMM, 2008 WL 4219079 (D. Ariz. Sept. 4, 2008), and aff’d sub 8 nom. Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011) (“[I]f additional ineffectiveness 9 allegations are raised in a successive petition, the claims in the later petition necessarily 10 will be precluded.”). 11 Relying on Fitzgerald v. Myers, 402 P.3d 442, 445–51 (Ariz. 2017), Fitzgerald 12 argues that his incompetence on PCR provides an available avenue to exhaust the 13 ineffective-assistance claims under Rule 32.1(e). (Doc. 63 at 16; Doc. 67 at 11.) Fitzgerald 14 does not support this argument. See, e.g., Morris v. Thornell, No. CV-17-00926-PHX- 15 DGC, 2023 WL 4237334, at *9 (D. Ariz. June 28, 2023). In that case, the Arizona Supreme 16 Court held that state law did not require that a defendant be competent during PCR. 17 Fitzgerald, 402 P.3d at 445. The court did not address whether there was a due process 18 right to be competent during PCR because it had not been properly raised. Id. at 451. The 19 court acknowledged that, at times, “a capital defendant’s input and participation regarding 20 a particular Rule 32 claim are needed and [are] perhaps imperative.” Id. at 450. But “any 21 alleged prejudice caused by the petitioner’s incompetency may be addressed in a 22 successive PCR petition based on newly discovered facts under Rule 32.1(e). Id. at 449 23 (emphasis added). 24 Fitzgerald asserts that these ineffective-assistance claims are not precluded on a 25 successive PCR under Rule 32.1(e) “based on newly discovered material facts that could 26 not have been discovered previously due to [his] incompetence.” (Doc. 63 at 17.) But he 27 does not allege any newly discovered material facts as to Claims 13, 15, or 16. Nor does 28 he argue or show that his “input and participation” were necessary or imperative, to 1 discover any new facts and thereby fails to establish that he has an available remedy based 2 on newly discovered facts. 3 Because Fitzgerald’s ineffective-assistance claims are either actually exhausted, 4 Claims 1, 8, 9, and 11, or technically exhausted, Claims 13, 15, and 16, Rhines does not 5 apply to them. See Rhines, 544 U.S. at 271–79 (permitting a stay of a federal habeas case, 6 “in limited circumstances,” to allow petitioners to exhaust unexhausted claims in state 7 court); see also, e.g., McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, 8 at *3 (D. Ariz. Feb 26, 2020) (denying Rhines stay, without reaching the three-pronged 9 Rhines test, because the claims are technically exhausted, as they have no available state- 10 court remedy); Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2019 WL 1227179, at *1– 11 2 (D. Ariz. Mar. 15, 2019) (same). Thus, the Court will deny a Rhines stay as to them. 12 IV. MOTION TO AUTHORIZE 13 Fitzgerald moves to authorize habeas counsel to represent him on successive state 14 PCR under the Criminal Justice Act of 1964 (CJA), 18 U.S.C. § 3599(a)(2). (Doc. 63 at 1, 15 19–22.) The CJA “provides for the appointment of [federal] counsel for . . . indigent[ ]” 16 defendants in federal habeas cases, Harbison v. Bell, 556 U.S. 180, 184–85 (2009) (citing 17 18 U.S.C. § 3599(a)(2)), and requires counsel to represent them: 18 throughout every subsequent stage of available judicial 19 proceedings, including . . . all available post-conviction process, together with application for stays of execution and 20 other appropriate motions and procedures and . . . in such 21 competency proceedings and proceedings for executive or other clemency as may be available to the defendant. 22 23 18 U.S.C. § 3599(e). State postconviction review is not a stage “subsequent” to a federal 24 habeas case. See Harbison, 556 U.S. at 189 (citing 28 U.S.C. § 2254(b)(1)) (holding as 25 such, explaining that “[p]etitioners must exhaust their claims in state court before seeking” 26 the writ). Thus, “a state prisoner” lacks the “statutory right” to “federally paid counsel” in 27 seeking state postconviction relief. Lugo v. Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 28 1213 (11th Cir. 2014) (citing Harbison, 556 U.S. at 189); see also, e.g., Hitcho v. Wetzel, 1 No. 16-1156, 2016 WL 8717228, at *3 (E.D. Pa. Oct. 14, 2016) (acknowledging Lugo). 2 Yet this Court may decide “on a case-by-case basis that it is appropriate for” 3 counsel—“in the course of [their] federal habeas representation”—to exhaust claims in 4 state court. Harbison, 556 U.S. at 190 n.7 (based on § 3599(e)’s provision that counsel may 5 represent the prisoner “in ‘other appropriate motions and procedures’”); see also, e.g., 6 Gallegos v. Ryan, No. CV-01-01909-PHX-NVW, 2017 WL 3822070, at *5 (D. Ariz. July 7 2017) (stating, based on Harbison, 556 U.S. at 190 n.7, that “this Court has the discretion 8 to appoint federal counsel to represent [federal habeas petitioner] in state court”). 9 In denying Fitzgerald a Rhines stay, such authorization is inappropriate. See, e.g., 10 id. at *2–5 (denying such authorization by denying a Rhines stay to exhaust a “time-barred” 11 claim under 28 U.S.C. § 2244(d)(1) as futile); see also Hardy v. Shinn, No. CV-18-02494- 12 PHX-JJT, 2021 WL 4060555, at *7 and n.3 (D. Ariz. Sept. 7, 2021) (denying authorization 13 for capital habeas counsel to exhaust federal habeas claims in state court based on denial 14 of a Rhines stay for no good cause shown and “indications” of “dilatory litigation tactics”); 15 Johnson v. Ryan, No. CV-18-00889, 2019 WL 1227179, at *2 (D. Ariz. Mar. 15, 2019) 16 (denying such authorization as “inappropriate and unnecessary” because petitioner was 17 not “entitled to a Rhines stay,” “together with the Harbison Court’s discussion of [§ 18 3599(e)’s] parameters”).5 19 . . . 20 . . . 21 . . . 22 . . . 23 . . . 24 . . . 25 26 5 To support this motion, Fitzgerald refers the Court to Exhibit B, Memorandum re Use of Defender Services Appropriated Funds by Federal Appointed Counsel for State Court 27 Appearances in Capital Habeas Corpus Cases of District/Circuit Court Judge Claire V. Eagen (Dec. 9, 2010)). Judge Eagan stated that her memorandum was intended to address 28 the issue of expending federal funds in state court after a habeas court has determined that a remedy is available to exhaust it in state court. Id. at 2. That is not the case here. 1 Accordingly, 2 IT IS ORDERED denying Claim 14 to the extent that it asserts a violation of 3.| Simmons and Lynch IT. 4 IT IS FURTHER ORDERED denying Fitzgerald’s Motion for Temporary Stay 5 | and Abeyance and for Authorization to Represent Petitioner in State Court (Doc. 63). 6 Dated this Ist day of September, 2023. 7 Wichal T. Hburde ? Michael T. Liburdi 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16-