United States District Court, D. Arizona
G. Campbell United States District Judge.
the Court is Petitioner Alfredo Garcia's Motion for
Temporary Stay and Abeyance and for Authorization to Appear
in Ancillary State-Court Proceedings. (Doc. 36.) Garcia 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
Garcia filed a reply. (Docs. 37, 38.) For the reasons set
forth below, the motion will be denied.
afternoon of May 21, 2002, Daniel Anderson was tending bar at
Harley's Club 155. Steven Johnson, the bar's owner, was
talking with Anderson. Garcia entered and asked to use the
restroom, and they directed him toward the rear of the bar,
where there was a back door. Johnson went to the rear of the
bar and began fixing a broken ATM. Anderson followed and they
continued talking. Johnson kneeled beside the ATM with a
stack of $20 bills.
burst through the back door and shouted “drop the
money.” Directly behind Garcia was James Sheffield, who
was crouching and carrying a gun. Johnson stood, threw the
$20 bills on the ground, and said “just get out, get
out of here.” Garcia pushed Johnson against the wall.
Anderson stood “frozen” until Johnson looked at
him and said “get out of here.” Anderson ran into
the bar's office, pushed an alarm button, and escaped. He
heard a gunshot before entering the office and a scuffling
sound followed by a second gunshot as he fled.
went to another bar and called the police. Upon arriving at
Harley's, police found Johnson's body outside the
back door and $20 bills scattered nearby. Police also viewed
video recordings from bus security cameras on the afternoon
of Johnson's murder, which showed Garcia and Sheffield
boarding a bus near the crime scene and later getting off at
the same stop.
and Sheffield were arrested. Each was indicted on one count
of first-degree murder and one count of armed robbery. Their
trials were severed. On November 13, 2007, a jury found
Garcia guilty on both counts. After learning of possible
juror misconduct, the trial court empaneled a new jury for
the aggravation and penalty phases. The second jury found
that Garcia was a major participant in the felony and was
recklessly indifferent to Johnson's life. The jury also
found two aggravators: that Garcia had been previously
convicted of a serious offense, see A.R.S. §
13-751(F)(2), and that he had committed first-degree murder
for pecuniary gain, see A.R.S. § 13-751(F)(5).
Concluding there was no mitigation sufficiently substantial
to call for leniency, the jury determined that Garcia should
be sentenced to death. The Arizona Supreme Court affirmed.
State v. Garcia, 224 Ariz. 1, 7, 226 P.3d 370, 376
unsuccessfully pursuing post-conviction relief in state
court, Garcia filed a petition for writ of habeas corpus in
this Court on December 16, 2015. (Doc. 22.) The petition has
been fully briefed. (Docs. 29, 35.) Garcia seeks a stay of
these proceedings so he can return to state court and present
claims that he alleges are newly available based on two
recent United States Supreme Court opinions: Lynch v.
Arizona, 136 S.Ct. 1818 (2016) (per curiam), and
Hurst v. Florida, 136 S.Ct. 616 (2016).
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.
It provides, in relevant part, that a petitioner is precluded
from relief on any ground that was finally adjudicated on the
merits on appeal or in a previous collateral proceeding or
that could have been raised on appeal or in a previous
collateral proceeding. Ariz. R. Crim. P. 32.2(a). 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 a 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.
contends that under Rule 32.1(g), the Supreme Court's
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. P. 32.1(g).
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 ...