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Newell v. Ryan

United States District Court, D. Arizona

October 20, 2016

Steven Ray Newell, Petitioner,
Charles L Ryan, et al., Respondents.



          Honorable John J. Tuchi, United States District Judge.

         Before the Court is Petitioner Steven Ray Newell's Motion for Temporary Stay and Abeyance and to Legally Represent Petitioner in State Court Proceedings. (Doc. 72.) Newell asks the Court to stay and hold his case in abeyance while he pursues state court relief under Lynch v. Arizona, 136 S.Ct. 1818 (2016) (per curiam). He also seeks permission for his federal habeas counsel to appear on his behalf in state court. Respondents filed a response in opposition. (Doc. 73.) For the reasons set forth below, the motion is denied.


         In 2001, Newell sexually assaulted and murdered an eight-year-old girl. A jury convicted him of first-degree murder, sexual conduct with a minor, and kidnapping. He was sentenced to death on the first-degree murder conviction. The Arizona Supreme Court affirmed the convictions and sentences. State v. Newell, 212 Ariz. 389, 132 P.3d 833 (2006). After unsuccessfully pursuing post-conviction relief, Newell filed a petition for writ of habeas corpus in this Court. (Doc. 38.) In Claim 25 of his habeas petition, Newell alleges that the trial court violated his due process rights by instructing the jury that if it did not sentence Newell to death, he could be sentenced to life with the possibility of parole after 35 years when, in fact, the earliest possibility of parole would have been after 58 years. (Id. at 183-84.) Newell did not raise this claim in state court, and in Claim 26 he alleges that appellate counsel performed ineffectively in failing to do so. (Id. at 186.) Newell asks the Court to stay the case so that he can return to state court to raise these allegations.


         When a petitioner has an available remedy in state court that he has not procedurally defaulted, it is appropriate for the federal court to stay the habeas proceedings if (1) there was good cause for the petitioner's failure to exhaust his claims first in state court, (2) his unexhausted claims are potentially meritorious, and (3) there is no indication that he engaged in intentionally dilatory litigation tactics. See Rhines v. Weber, 544 U.S. 269, 277 (2005).

         Newell contends that under Rule 32.1(g) of the Arizona Rules of Criminal Procedure, the United States Supreme Court's recent decision in Lynch provides an available remedy in state court. Rule 32.1(g) provides that a defendant may file a petition for post-conviction relief on the ground that “[t]here has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence.” Ariz. R. Crim. P. 32.1(g).

         Arizona courts have described a significant change in the law as a “transformative event, ” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009), and a “clear break” or “sharp break” with the past. State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991). “The archetype of such a change occurs when an appellate court overrules previously binding case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A statutory or constitutional amendment representing a definite break from prior law can also constitute a significant change in the law. Id. at 119, 203 P.3d at 1179; see State v. Werderman, 237 Ariz. 342, 343, 350 P.3d 846, 847 (App. 2015).

         In Lynch, 136 S.Ct. 1818, the Supreme Court applied Simmons v. South Carolina, 512 U.S. 154 (1994), to a capital sentencing in Arizona. Simmons held that when future dangerousness is an issue in a capital sentencing determination, the defendant has a due process right to require that his sentencing jury be informed of his ineligibility for parole. 512 U.S. at 171.

         In Lynch, the defendant was convicted of murder and other crimes. 136 S.Ct. at 1818. Before the penalty phase of his trial began, the state successfully moved to prevent his counsel from informing the jury that, if the defendant did not receive a death sentence, he would be sentenced to life in prison without possibility of parole.[1] Id. at 1819. The jury sentenced him to death. Id. On appeal, Lynch argued that, because the state had made his future dangerousness an issue in arguing for the death penalty, the jury should have been given a Simmons instruction stating that the only non-capital sentence he could receive under Arizona law was life imprisonment without parole. Id. The Arizona Supreme Court affirmed, holding that the failure to give the Simmons instruction was not error because the defendant could have received a life sentence that would have made him eligible for release after 25 years-even though any such release would have required executive clemency. Id. at 1820.

         The United States Supreme Court reversed. Id. The Court reiterated that under Simmons and its progeny, “where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, ” the Due Process Clause “entitles the defendant to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.” Id. at 1818 (internal quotations omitted). The Court explained that neither the possibility of executive clemency nor the possibility that state parole statutes will be amended can justify refusing a parole-ineligibility instruction. Id. at 1820.

         Newell concedes that Lynch was not a clear break from the past and did not overturn binding precedent. (Doc. 74 at 2.) Instead, he argues that Lynch was a “transformative event . . . for Arizona law [because] it explicitly decided that Arizona's treatment of the Simmons issue was contrary to due process.” (Id. at 3.) Therefore, according to Newell, “he now has an available state court remedy for the ongoing federal constitutional error, which was not available under state law until Lynch.” (Id.)

         The Court concludes that Lynch does not represent a change in the law. Lynch simply applied existing law to an Arizona case. It was not a transformative event of the kind described by Arizona courts in interpreting Rule 32.1(g). In Shrum, for example, the Arizona Supreme Court cited Ring v. Arizona, 536 U.S. 584 (2002), as a “significant change in the law.” 220 Ariz. at 119, 203 P.3d at 1179. Ring “expressly overruled” Walton v. Arizona, 497 U.S. 639 (1990). As the Arizona Supreme Court explained, “before Ring, a criminal defendant was foreclosed by Walton from arguing that he had a right to trial by ...

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