United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
the Court is Petitioner Steve Alan Boggs's Motion for
Temporary Stay and Abeyance and for Authorization to Appear
in Ancillary State-Court Proceedings. (Doc. 41.) Boggs asks
the Court to stay and hold his case in abeyance while he
pursues state court relief. He also seeks permission for his
federal habeas counsel to appear on his behalf in state
court. Respondents filed a response opposing a stay and Boggs
filed a reply. (Docs. 42, 43.) For the reasons set forth
below, the motion is denied.
2002, Boggs and Christopher Hargrave, members of a white
supremacist militia group, shot three fast-food workers to
death. In 2005, a jury found Boggs guilty of three counts of
first-degree murder and determined that he should be
sentenced to death. The Arizona Supreme Court affirmed the
convictions and sentences. State v. Boggs, 218 Ariz.
325, 185 P.3d 111 (2008). After unsuccessfully pursuing
post-conviction relief, Boggs filed a petition for writ of
habeas corpus in this Court. (Doc. 15.) Respondents filed an
answer and Boggs filed a reply. (Docs. 21, 26.) Boggs's
brief on evidentiary development was due on November 14,
2016. (Doc. 40.) He filed the pending motion on October 31,
2016. (Doc. 41.)
now seeks a stay so that he can return to state court and
present several claims. He argues that Lynch v.
Arizona, 136 S.Ct. 1818 (2016) (per curiam), and
Hurst v. Florida, 136 S.Ct. 616 (2016), are
significant changes in the law under Arizona Rule of Criminal
Procedure 32.1(g). He also contends that additional
mitigation evidence constitutes newly discovered material
facts that probably would have changed the verdict or
sentence under Arizona Rule of Criminal Procedure 32.1(e).
Finally, Boggs argues that the new mitigation evidence
demonstrates by clear and convincing evidence that the court
would not have imposed the death penalty under Arizona Rule
of Criminal Procedure 32.1(h).
habeas petition is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254(b)(1)(A). Although AEDPA does not deprive
courts of the authority to stay habeas corpus petitions, it
“does circumscribe their discretion.” Rhines
v. Weber, 544 U.S. 269, 276 (2005). The Supreme Court
has emphasized that the stay and abeyance of federal habeas
petitions is available only in limited circumstances.
Id. at 277. “Staying a federal habeas petition
frustrates AEDPA's objective of encouraging finality by
allowing a petitioner to delay the resolution of the federal
proceedings. It also undermines AEDPA's goal of
streamlining federal habeas proceedings by decreasing a
petitioner's incentive to exhaust all his claims in state
court prior to filing his federal petition.”
of habeas corpus may not be granted unless it appears that a
petitioner has exhausted all available state court remedies.
28 U .S.C. § 2254(b)(1); see also Coleman v.
Thompson, 501 U.S. 722, 731 (1991). In Arizona, there
are two avenues for petitioners to exhaust federal
constitutional claims: direct appeal and post-conviction
relief proceedings (“PCR”). Rule 32 of the
Arizona Rules of Criminal Procedure governs PCR proceedings
and provides that a petitioner is precluded from relief on
any claim that could have been raised on appeal or in a prior
PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive
effect of Rule 32.2(a) may be avoided only if a claim falls
within certain exceptions and the petitioner can justify why
the claim was omitted from a prior petition or not presented
in a timely manner. See Ariz. R. Crim. P.
32.1(d)-(h), 32.2(b), 32.4(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, 544 U.S. at 277. As discussed below,
courts also have the inherent power to stay cases as a means
of controlling their dockets. Landis v. North American.
Co., 299 U.S. 248, 254 (1936)
Hurst, Boggs seeks a stay under Rhines to
exhaust his Claim 38 of his habeas petition. (Doc. 43 at 7.)
With respect to the other claims, he seeks a stay to
“present in state court newly available claims without
simultaneous and potentially unnecessary federal
proceedings.” (Doc. 43 at 3.)
contends that under Rule 32.1(g), the United States Supreme
Court's recent decisions in Lynch and
Hurst provide 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.
courts have characterized 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 ...