United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Petitioner Richard Louis Gray's
Motion to Stay and Abey. (Doc. 39). Magistrate Judge Eileen
S. Willett has issued a Report & Recommendation (R&R)
in which she recommends that the Court deny the motion. (Doc.
46). Petitioner filed objections to the R&R. (Doc. 47).
For the following reasons, the Court adopts the R&R and
denies the motion.
23, 2013, Petitioner pled guilty to attempted sexual conduct
with a minor, molestation of a child, and public sexual
indecency. (Doc. 9, p. 2). Petitioner was sentenced
to probation on the charges of sexual conduct with a minor
and public sexual indecency. Id. Petitioner was
sentenced to a term of ten years imprisonment on the charge
of molestation of a child. Id. Petitioner did not
file a direct appeal. Id. Petitioner filed a notice
of post-conviction relief (“PCR”) in the Maricopa
County Superior Court, alleging ineffective assistance of
counsel, unconstitutionality of a confrontation call, and due
process violations. Id. at p. 4. The state trial
court dismissed the PCR petition on July 2, 2014.
Id. Petitioner sought review in the Arizona Court of
Appeals, which was denied on January 31, 2017. Id.
at pp. 5, 11. Petitioner filed this habeas petition pursuant
to 28 U.S.C. § 2254 on March 31, 2017; Petitioner
amended the petition on May 22, 2017. (Doc. 1, 9). Petitioner
raised four grounds for relief: (1) ineffective assistance of
trial counsel; (2) prosecutorial misconduct; (3) substantive
due process violation; and (4) ineffective assistance of PCR
filed a notice with the Court on June 6, 2017, alerting the
Court to a ruling in May v. Ryan, 245 F.Supp.3d 1145
(D. Ariz. 2017). (Doc. 13). In May, Judge Neil Wake
found that Arizona's child molestation criminal law
contained the essential element of sexual intent.
Id. at 1153-56. Judge Wake further held that
Arizona's statute violated defendants' due process
rights by placing the burden of proving lack of sexual intent
on defendants. Id. at 1162-65. An appeal is pending
in the Ninth Circuit. May v. Ryan, CA 17-15704 (9th
Cir. filed April 12, 2017). Petitioner pled guilty to and was
convicted of the same child molestation statute which Judge
Wake ruled unconstitutional. Petitioner subsequently sought
leave to amend his habeas petition in light of May.
(Doc. 16, 24). The Court granted the request. (Doc. 31).
Petitioner's habeas petition now includes a fifth ground
for relief alleging a violation of substantive due process
due to imprisonment pursuant to an unconstitutional law.
amending his habeas petition, Petitioner filed a Motion to
Stay and Abey his federal habeas claim while he exhausts his
argument about the unconstitutionality of the child
molestation statute in the state courts. (Doc. 39). In a
Motion for Extension of Time, the State noted that is takes
no position on Petitioner's request for a stay. (Doc.
41). The R&R found that Petitioner's Motion did not
show good cause for failure to exhaust or that his claims are
potentially meritorious, and therefore recommended denying
the Motion to Stay. (Doc. 46). Petitioner filed objections,
which this Court reviews de novo. United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Where a petitioner “had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics, ” “the
district court should stay rather than dismiss, the mixed
petition.” Rhines v. Weber, 544 U.S. 269, 278
Petitioner objects to the R&R's statement that the
State did not file a Response to the Motion to Stay. (Doc.
47, p. 2). Petitioner notes, correctly, and as this Court
stated above, that the Respondents stated they took no
position on the Motion to Stay in a separate filing. This
objection, however, is not substantive and would not have
changed the R&R's analysis or conclusion.
Petitioner argues that he has shown good cause for failing to
exhaust his claim in state court. The May decision
was entered on March 28, 2017 and Petitioner filed his habeas
petition on March 31, 2017. Petitioner asserts that
“the basis for the Petitioner's claim was not
reasonably available when he filed his habeas.”
Id. at p. 3. While the Court accepts that Petitioner
could not have reasonably known about the May
decision when filing his habeas, Petitioner has failed to
establish that his claim is potentially meritorious. Unlike
in May, Petitioner pled guilty. Petitioner has made
no argument that the question of sexual intent was at issue
in his case. Petitioner has not claimed that his plea would
have changed had he known that the State had, or should have
had, the burden of proving sexual intent.
IS THEREFORE ORDERED that the Magistrate Judge's
Report and Recommendation (Doc. 46) is
ADOPTED and the Motion for Stay and Abeyance
of Richard Louis Gray (Doc. 39) is DENIED.
 Because Petitioner filed a Motion to
Stay and Abey, Respondents were not required to file an
answer to Petitioner's habeas petition until after the
Court ruled on the Motion to Stay and Abey. (Doc. 42).
Therefore, the Court does not have a record in front of it to
review. The Court relies ...