United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Patrick Wade Bearup's
Motion to Amend. (Doc. 101.) Bearup, an Arizona death row
inmate, seeks to amend three of the claims in his habeas
petition and to raise three additional claims. He contends
that amendment is appropriate based on evidence discovered
after he filed his petition. First, Bearup learned that the
Arizona Supreme Court performed its independent review of his
death sentence without access to the minute entry and
transcript from the sentencing hearing on his kidnapping
conviction. (Id. at 2-5.) Next, Bearup cites two
newly-disclosed letters from the prosecutor in his case to an
attorney for co-defendant Sean Gaines. (Id. at 5.)
Respondents oppose amendment. (Doc. 113.) For the reasons set
forth below, amendment is denied.
2007, Bearup was convicted of one count of kidnapping and one
count of first-degree murder, for which he was sentenced to
death. The following background is taken from the opinion of
the Arizona Supreme Court in State v. Bearup, 221
Ariz. 163, 166- 67, 211 P.3d 684, 687-88 (2009).
February 2002, Jessica Nelson discovered that money was
missing from her room. She suspected that Mark Mathes,
another resident of the home, had taken it. Nelson called
Sean Gaines and told him of her suspicion. Gaines instructed
her to call back when Mark returned home.
told Bruce and Marie Mathes, the owners of the home, that
Gaines, Jeremy Johnson, and Bearup were going to confront
Mark about the missing money. Bruce asked Nelson to retrieve
a ring he had previously given Mark, his brother, as a
present. When Mark returned home that evening, Nelson called
Gaines and told him that Mark was back.
and Johnson armed themselves and left for Nelson's house.
On the way, they stopped at a convenience store to meet
three men got out of their vehicles and approached the Mathes
home. Gaines carried a loaded shotgun, Johnson had a baseball
bat, and Bearup brought a folding knife. Bearup, Johnson, and
Gaines surrounded Mark, who was sitting at a table on the
rear patio with Nelson. Johnson attacked Mark with the bat,
striking him repeatedly in the head and upper torso.
witnesses disagreed about whether Mark was alive following
the beating. Nelson was certain that Mark was killed on the
patio; Johnson testified that Mark was still conscious and
groaning. After the attack, Johnson and Bearup dragged Mark
to one of the cars and stuffed him in the trunk. Bearup
kicked Mark's head to make him fit into the trunk. The
perpetrators got into two vehicles and drove to an isolated
area near Crown King.
the cars stopped on Crown King Road, Bearup pulled Mark from
the trunk. Gaines and Nelson stripped off his clothes to make
the body more difficult to identify. As Nelson was struggling
to remove Mark's ring, Bearup approached and cut off the
finger with a pair of wire clippers. Mark was then thrown
over the guardrail. As he lay in the ravine below, Gaines
shot him twice.
perpetrators then returned to their vehicles and left for
Phoenix. Bearup drove Nelson home. She returned the ring to
Marie. Bearup told Marie that she did not have to file a
missing person's report because Mark would never be
later told his ex-wife that he had gone with friends to beat
up a man who had stolen a ring, but the person was killed and
he helped dispose of the body. He also told an ex-girlfriend
about the killing. She overheard Bearup laughing as he talked
about cutting off the victim's finger.
was indicted on one count of kidnapping and one count of
first-degree murder. The State alleged two aggravating
factors: a previous conviction for a serious offense, A.R.S.
§ 13-703(F)(2), and the commission of the offense in an
especially heinous, cruel, or depraved manner, (F)(6).
trial, Bearup presented alibi and mistaken identity defenses.
The jury convicted him of kidnapping and first-degree murder
and found both the (F)(2) and (F)(6) aggravating factors.
Bearup represented himself at sentencing and presented no
mitigating evidence. The jury returned a verdict of death for
Arizona Supreme Court affirmed the convictions and sentences
on direct appeal. Bearup, 221 Ariz. at 166-67, 211
P.3d at 687-88. After unsuccessfully pursuing post-conviction
relief (“PCR”) in state court, Bearup filed a
petition for writ of habeas corpus in this Court on August
25, 2017, and an amended petition on September 18, 2017.
(Docs. 34, 39.)
petition for habeas corpus may be amended pursuant to the
Federal Rules of Civil Procedure. 28 U.S.C. § 2242;
see also Rule 12, Rules Governing § 2254 Cases,
28 U.S.C. foll. § 2254 (providing that the Federal Rules
of Civil Procedure may be applied to habeas petitions to the
extent they are not inconsistent with the habeas rules). The
Court looks to Rule 15 of the Federal Rules of Civil
Procedure to address a motion to amend a pleading in a habeas
corpus action. See James v. Pliler, 269 F.3d 1124,
1126 (9th Cir. 2001). Leave to amend shall be freely given
“when justice so requires, ” Fed.R.Civ.P. 15(a),
and courts must review motions to amend in light of the
strong policy permitting amendment. Gabrielson v.
Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir.
1986). The factors that may justify denying a motion to amend
include undue delay, bad faith or dilatory motive, futility
of amendment, undue prejudice to the opposing party, and
whether petitioner has previously amended. Foman v.
Davis, 371 U.S. 178, 182 (1962); Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
to amend may be denied based on futility alone. See
Bonin, 59 F.3d at 845. To assess futility, a court
evaluates whether relief may be available on the merits of
the proposed claim. See Caswell v. Calderon, 363
F.3d 832, 837-39 (9th Cir. 2004) (conducting a two-part
futility analysis reviewing both exhaustion of state court
remedies and the merits of the proposed claim). If the
proposed claims are untimely, unexhausted, or otherwise fail
as a matter of law, amendment should be denied as futile.
Id. Where the legal basis for a cause of action is
tenuous, futility supports the refusal to grant leave to
amend. Id. at 837.
argue that “[b]ecause the new claims and arguments are
untimely, procedurally defaulted, and/or meritless, it would
be futile to allow Bearup to add them to his habeas
petition.” (Doc. 113 at 1.) For the reasons discussed
below, the Court agrees that amendment is
Transcript of the May 4, 2007, kidnapping sentencing
seeks to amend three claims and add one new claim based on
his discovery that the Arizona Supreme Court did not have the
transcript of the May 4, 2007 hearing when it reviewed his
represented himself during the penalty phase of sentencing on
his murder conviction. He waived the presentation of any
mitigating evidence. (RT 2/1/07 at 11.) On February 5,
2007, the jury voted to sentence him to death. (RT 2/5/07 at
respect to the kidnapping conviction, on April 17, 2007,
Bearup filed “Letters of support for mitigation and
sentencing hearing, ” attaching 20 letters written by
family and friends. (ROA 410.) Additional letters of support
were attached to a probation violation report filed on May
18, 2007. (ROA 419.) On May 4 and 18, 2007, the trial court
held a sentencing hearing on the kidnapping conviction, after
which the court sentenced Bearup to a term of 12 years'
imprisonment. (RT 5/18/07 at 33.)
witnesses spoke on Bearup's behalf at the hearing. A
friend, Pamela Sweet, stated that Bearup “always had a
very kind heart, very honest and open . . . I don't
believe he would hurt anybody. . . [H]e's been there for
me, emotionally, personally. Even though [sic] the situation
where he is right now.” (Id. at 13.) Cherie
Abbey, Bearup's foster mother, stated that, “He is
welcome in my home any time . . . and his children need him
desperately. They got a mother in their life but they need
that role model of a male, and Patrick needs to be
there.” (Id. at 14.)
Butler, a detention officer, also testified for Bearup. He
stated that Bearup posed no problems in the jail.
(Id. at 16.) He was a helpful inmate, and once
informed Butler that drugs were being brought into the
facility. (Id. at 17.) Although Bearup was
classified as a member of the Aryan Brotherhood, Butler
thought he “didn't fit the bill”; he treated
Butler, who is black, courteously. (Id. at 18.)
Butler “had no reason to believe [Bearup] belonged to
that group.” (Id.)
transcript from this hearing was apparently filed under an
incorrect case number and was not included in the record
before the Arizona Supreme Court during ...