United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Before the Court is Petitioner's Motion to Amend First Amended Habeas Petition. (Doc. 228.) Petitioner is an Arizona prisoner under sentence of death. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, he seeks the Court's permission to amend his habeas petition to add eight claims of ineffective assistance of counsel. Petitioner argues that under Maples v. Thomas, 132 S.Ct. 912 (2012), and Martinez v. Ryan, 132 S.Ct. 1309 (2012), cause exists to overcome the procedural default of these claims. ( Id. ) Respondents oppose amendment. (Doc. 231.) For the reasons set forth below, the motion is denied.
In 1991, Petitioner was convicted by an Arizona jury of felony murder, armed robbery, aggravated assault, first-degree burglary, and theft. Petitioner repeatedly stabbed Darrel and Deborah Wagner in front of their seven-year-old son during a burglary of the Wagners' home. Darrel Wagner died from the stabbing. Deborah Wagner survived but spent five days in intensive care. The trial court sentenced Gonzales to death on the murder charge and to various prison terms for the other crimes.
On November 15, 1999, Petitioner commenced these proceedings by filing a pro forma petition for a writ of habeas corpus. (Doc. 1.) The Court appointed the Federal Public Defender's Office as counsel. (Doc. 8.) On December 27, 1999, the Court issued a case management order setting a deadline for the filing of an amended petition. (Doc. 17.) The order required the amended petition to "include every known constitutional error or deprivation entitling Petitioner to habeas relief" and to provide a "Statement of Exhaustion" noting where each claim for relief was raised in state court. ( Id. at 2.)
On July 17, 2000, Petitioner filed a 237-page amended petition raising 60 claims for relief. (Doc. 28.) He failed, however, to file the required Statement of Exhaustion. The Court directed Petitioner to comply with its case management order. (Doc. 34.) On September 14, 2000, Petitioner notified the Court that he had filed a petition for writ of mandamus in the Ninth Circuit Court of Appeals. (Doc. 35.) The Court denied Petitioner's request for a stay of proceedings and for additional time to file the Statement of Exhaustion. (Doc. 40.)
On October 6, 2000, Petitioner filed the Statement of Exhaustion. (Doc. 42.) Through counsel, he simultaneously filed a notice of withdrawal of claims, voluntarily withdrawing 13 unexhausted habeas claims, including claims alleging ineffective assistance of counsel. (Doc. 43.) The notice indicated that Petitioner had initiated a post-conviction relief (PCR) proceeding in state court to exhaust the withdrawn claims, but did not request a stay of federal proceedings on this basis. ( Id. at 2.) On October 16, 2000, the Ninth Circuit denied the mandamus petition as moot.
In February 2001, Petitioner requested that his state-court-appointed PCR counsel be removed and that he be permitted to represent himself in his successive PCR proceeding. (Doc. 102-1 at 3-5.) The state court ordered a mental health examination to determine whether Petitioner was competent to waive counsel. ( Id. at 6-7.) A court-appointed expert examined Petitioner and concluded that he was paranoid and delusional. ( Id. at 10.) In August 2001, the court found Petitioner incompetent to waive counsel and represent himself. ( Id. at 26.)
In December 2001, on the day Petitioner's successive PCR petition was due, counsel filed a motion to hold the case in abeyance pending restoration of Petitioner's competency. (Doc. 102-1 at 30-36.) The motion asserted that Petitioner's inability to rationally communicate with counsel precluded counsel from developing a claim of incompetency at the time of trial and sentencing. ( Id. ) The state court denied the motion. ( Id. at 45.)
In February 2002, state counsel filed a successive PCR petition asserting four claims, including that Petitioner had a right to assist counsel in a second PCR proceeding, that he was entitled to an evidentiary hearing to determine his current competency, and that he was incompetent at the time of trial and sentencing. (Doc. 108-1 at 3-24.) PCR counsel did not raise any of the claims withdrawn from the amended federal habeas petition. ( Id. ) The state court denied the petition, explaining that Petitioner had failed to present a "colorable claim... that newly discovered evidence shows defendant was incompetent to stand trial." ( Id. at 40.) Counsel filed a petition for review, which the Arizona Supreme Court denied on October 28, 2003. (Doc. 108-2 at 6.)
Following Petitioner's withdrawal of the 13 unexhausted claims in October 2000, the parties briefed the procedural status of Petitioner's remaining habeas claims. Briefing concluded in February 2001 with the filing of Petitioner's sur-reply. (Doc. 59.) The procedural status of Petitioner's claims remained under advisement until September 2002, when, following the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), the Court stayed Petitioner's sentencing-related claims pending exhaustion in state court of a claim based on Ring. (Doc. 75.) Petitioner initiated another state PCR proceeding. The state court consolidated it with the already-pending PCR petition. As previously noted, the Arizona Supreme Court denied review of the petition in October 2003. (Doc. 81.) In July 2004, following the United States Supreme Court's decision in Schriro v. Summerlin, 542 U.S. 348 (2004), the Court lifted the stay.
Over the next 18 months, while the matter was under advisement, Petitioner did not seek amendment to reincorporate the 13 withdrawn claims or to add the claims litigated in the second PCR petition.
On January 12, 2006, the Court entered its order regarding the procedural status of Petitioner's habeas claims. (Doc. 97.) The Court dismissed some of the claims on procedural grounds or as plainly meritless, and established a deadline for Petitioner to submit briefing on the merits of the remaining claims. ( Id. )
On the eve of the deadline for filing his merits brief, Petitioner's counsel instead moved to stay this action pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), abrogated by Ryan v. Gonzales, 133 S.Ct. 696 (2013), contending that Petitioner was incapable of rationally communicating with or assisting counsel. (Doc. 102.)
After two years of litigation regarding Petitioner's competency and the issue of forcible medication, the Court entered an order on April 23, 2008, denying Petitioner's motions for a competency hearing and to stay these proceedings. (Doc. 187.) The Court determined that Petitioner's remaining claims were record-based or involved purely legal issues, and therefore would not potentially benefit from Petitioner's ability to communicate rationally with counsel. ( Id. ) Petitioner filed an emergency petition for writ of mandamus with the Ninth Circuit, which issued a stay on June 19, 2008. (Doc. 199.) The Ninth Circuit subsequently granted mandamus. In re Gonzales, 623 F.3d 1242 (9th Cir. 2010).
On January 8, 2013, the United States Supreme Court reversed. Gonzales, 133 S.Ct. at 696. The Ninth Circuit received a copy of the Supreme Court's January 8 judgment on February 12, 2013. On March 20, 2013, Petitioner filed a motion for miscellaneous relief with the Ninth Circuit, asking that his habeas proceedings be stayed pending ...