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Garcia v. Ryan

United States District Court, D. Arizona

May 1, 2017

Alfredo Lucero Garcia, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge.

         Before 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.

         I. BACKGROUND

         On the afternoon of May 21, 2002, Daniel Anderson was tending bar at Harley's Club 155.[1] 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.

         Garcia 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.

         Anderson 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.

         Garcia 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 (2010).

         After 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).

         II. ANALYSIS

         Garcia's 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.” Id.

         A writ 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).

         When 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.

         Garcia 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).

         Arizona 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 ...


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