Bearup v. Shinn

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.

         DEATH PENALTY CASE

         Pending 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.

         BACKGROUND

         In 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).

         In 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.

         Nelson 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.

         Gaines and Johnson armed themselves and left for Nelson's house. On the way, they stopped at a convenience store to meet Bearup.

         The 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.

         The 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.

         When 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.

         The 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 found.

         Bearup 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.

         Bearup 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).

         At 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 the murder.

         The 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.)

         APPLICABLE LAW

         A 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).

         Leave 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.

         DISCUSSION

         Respondents 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 futile.^[2]

         A. Transcript of the May 4, 2007, kidnapping sentencing hearing

         Bearup 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 death sentence.

         Bearup 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.)^[3] On February 5, 2007, the jury voted to sentence him to death. (RT 2/5/07 at 3.)

         With 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.)

         Three 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.)

         Ben 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.)

         The 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 ...