Martinez v. Thornell ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gilbert Martinez, No. CV-20-00517-PHX-DJH 10 Petitioner, ORDER 11 v. DEATH PENALTY CASE 12 Ryan Thornell, et al., 13 Respondents. 14 15 Gilbert Martinez is an Arizona death row inmate seeking federal habeas relief. 16 Before the Court is his unopposed Motion for Stay and Abeyance (Doc. 76) and his Motion 17 for Authorization to Represent Petitioner in State Court (Doc. 72). Citing the United States 18 Supreme Court’s recent decision in Cruz v. Arizona, 598 U.S. 17, 20–21 (2023), Petitioner 19 seeks an order staying and holding in abeyance the current federal habeas proceedings 20 pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he may present unexhausted 21 Claims 3(D) and 4 of his federal habeas petition in state court. Petitioner also asks the Court 22 to authorize the Federal Public Defender for the District of Arizona (“FPD”) to represent 23 him in the related state court proceedings. Respondents take no position on the latter 24 request. (See Doc. 72 at 1.) 25 For the reasons stated in Petitioner’s motion, the Court finds that the requirements 26 for a stay under Rhines have been satisfied. (See Doc. 76 at 6–12.) Claim 4, alleging a 27 violation of Petitioner’s right to a parole ineligibility instruction under Simmons v. South 28 Carolina, 512 U.S. 154 (1994), is not plainly meritless; good cause exists for Petitioner’s 2|| failure to exhaust the claim; and Petitioner has not been dilatory in seeking a stay. 3 The Court will also grant Petitioner’s request for the FPD to represent him in pursuing Claim 4 in state court. See Harbison vy. Bell, 556 U.S. 180, 190 n.7 (2009) 5|| (“Pursuant to [18 U.S.C.] § 3599(e)’s provision that counsel may represent her client in || ‘other appropriate motions and procedures,’ a district court may determine on a case-by- case basis that it is appropriate for federal counsel to exhaust a claim in the course of her 8 || federal habeas representation.’’). 9 Accordingly, 10 IT IS ORDERED that Petitioner’s motion seeking a stay and abeyance of federal 11 || habeas proceedings (Doc. 76) is GRANTED. 12 IT IS FURTHER ORDERED Petitioner’s Motion for Authorization for Habeas 13 || Counsel to Represent Petitioner in State Court for purposes of presenting his unexhausted 14]| claims (Doc. 72) is GRANTED. 15 IT IS FURTHER ORDERED directing Petitioner to file notice with the Court or 16|| move for other appropriate relief within 30 days of the conclusion of the state court 17 || proceedings. 18 Dated this 11th day of December, 2023. 19 20 oC. . fe 21 norable' Diang4. Hurtetewa 02 United States District Fudge 23 24 25 26 27 28 _2-