Bearup v. Shinn

1   WO                                                                   
2                                                                        
3                                                                        
4                                                                        
5                                                                        
6                 IN THE UNITED STATES DISTRICT COURT                    
7                     FOR THE DISTRICT OF ARIZONA                        

8                                                                        

9   Patrick Wade Bearup,               No. CV-16-03357-PHX-SPL           

10              Petitioner,             ORDER                             

11   v.                                 DEATH PENALTY CASE                

12   Ryan Thornell, et al.,                                               

13              Respondents.                                              
14                                                                        
15        Petitioner Patrick Wade Bearup has moved for a stay and abeyance of this case 
16   under Rhines v. Weber, 544 U.S. 269 (2005), so that he can exhaust one of his habeas 
17   claims in state court. (Doc. 160 at 1–12.) He also asks the Court to authorize his habeas 
18   counsel to represent him in state court. (Id. at 1, 12–14.) Respondents oppose a stay and 
19   abeyance and take no position on the authorization request. (Doc. 161.) For the reasons 
20   below, the Court will grant Bearup’s motion and will stay and hold this case in abeyance. 
21   The Court will also authorize habeas counsel to represent Bearup in state court. 
22   I.   BACKGROUND                                                      
23        The relevant facts began in 1993, when the Arizona Legislature eliminated parole 
24   for felonies committed post-1993. A.R.S. § 41-1604.09(I) (1993). In the late 1990s, Bearup 
25   spent four years in prison for aggravated assault. (Doc. 46-2 at 191.) He was released in 
26   2001 but was later charged as an accomplice in a 2002 kidnapping and murder.1 (See 
27                                                                        
    1 In Arizona, an accomplice can be “criminally accountable” for another’s conduct. A.R.S. 
28                                                                        
    § 13-303.                                                            
1   R.O.A. 1.) The State sought a death sentence for the murder, alleging two statutory 
2   aggravating  circumstances:  Bearup  had  been  convicted  of  the  “serious  offense”  of 
3   aggravated assault, see A.R.S. § 13-703(F)(2) (2002), and he committed the murder in an 
4   “especially heinous, cruel or depraved” way, id. at (6).2 (R.O.A. 17.)  
5        Prospective  jurors  in  Bearup’s  murder  case  were  required  to  complete  a 
6   questionnaire created by the parties’ counsel and approved by the court. (R.O.A. 210.) The 
7   questionnaire informed the prospective jurors about sentencing but incorrectly stated that 
8   if Bearup was convicted of the murder, but not sentenced to death, the court would sentence 
9   him to life in prison either with, or without, the possibility of “parole”, despite the 1993 
10   elimination of parole under A.R.S. § 41-1604.09(I).                  
11        After the parties’ counsel reviewed the completed questionnaires, they conducted 
12   individual voir dire. The court and the prosecutor incorrectly told two prospective jurors, 
13   who later served on the jury, that if Bearup was convicted of murder but not sentenced to 
14   death, the court would sentence him to life in prison either with, or without, the possibility 
15   of “parole.” (R.T. 11/6/06; R.T. 11/7/06 at 3–4, 131; R.T. 11/8/06; R.T. 11/14/06 at 13.) 
16   At no point during jury selection or trial did Bearup’s counsel seek a curative instruction, 
17   informing the jury that Bearup was ineligible for “parole,” and that if not sentenced to 
18   death, he could only be sentenced to life in prison without the possibility of “parole.”3 At 
19   the guilt phase, the jury found Bearup guilty as charged. State v. Bearup, 211 P.3d 684, 
20   688 (Ariz 2009).                                                     
21        Bearup represented himself at the aggravation phase (R.T. 1/29/07 at 7–9), where 
22   the jury found both alleged aggravating circumstances, Bearup, 211 P.3d at 688. Bearup 
23                                                                        

24   2 In Arizona, a defendant is ineligible for a death sentence unless he is convicted of a capital 
25   offense and at least one statutory aggravating circumstance is found. State ex rel. Thomas 
    v.  Granville,  123  P.3d  662,  666  (Ariz.  2005).  If  a  jury  finds  at  least  one  statutory 
26   aggravating circumstance, it must impose a death sentence if it finds “no mitigating 
27   circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-703(E) (2007). 
    3 As discussed below, Bearup was only eligible for “release” (commutation or a pardon), 
28                                                                        
    but not “parole.” See Chaparro v. Shinn, 459 P.3d 50, 54 ¶ 17 (Ariz. 2020). 
1   also represented himself at the penalty phase and did not present mitigating evidence or 
2   inform the jury that he was ineligible for parole if not sentenced to death. (R.T. 1/29/07 at 
3   9; R.T. 1/31/07 at 6–7; R.T. 2/1/07 at 6, 11–13.) Bearup allocuted to the jury that he did 
4   not actually kill the victim but that he would accept the jury’s sentencing verdict.4 (R.T. 
5   2/1/07 at 11–13.) The court instructed the jury that in deciding whether to sentence Bearup 
6   to death, it could consider evidence from all three phases of trial, and that if it did not 
7   sentence Bearup to death, the court would sentence him to life in prison either with, or 
8   without, the possibility of “release,” without explaining how “release” differed from 
9   “parole.” (Id. at 9–10, 17.)                                         
10        In closing at the penalty phase, the prosecutor argued that the jury should “focus” 
11   on Bearup’s “major,” “substantial,” and “shockingly evil” role in the murder, as well as his 
12   prior conviction for aggravated assault, which the prosecutor described as a “very serious 
13   and violent offense.” (Id. at 21–23.) The prosecutor also argued that Bearup was not 
14   “genuine[ly]” remorseful and had “chose[n] a path of violence,” resulting in the “brutal 
15   heinous murder,” within eight months of his release from prison. (Id. at 22–23.) Bearup, in 
16   closing, told the jury that he was not requesting “leniency” but instead was asking it to 
17   follow the law. (Id. at 24.) The jury deliberated for seven hours over three days (id. at 26; 
18   R.T. 2/5/07 at 3; Doc. 160 at 9), before it returned a death sentence, Bearup, 211 P.3d at 
19   688.5                                                                
20        On  direct  appeal,  the  Arizona  Supreme  Court  “independently  review[ed]”  the 
21   imposition  of  the  death  sentence.  Id.  at  693–96.  Bearup  alleged  three  mitigating 
22   circumstances on appeal: waiving the right to present mitigating evidence at the penalty 
23   phase, his “comparatively minor participation” in the murder, and the “disparity” between 
24   his death sentence and prison sentences for his co-defendants. Id. at 692–95. In addition, 
25   the supreme court also searched the record for other mitigation, id. at 696, without noting  
26                                                                        
27                                                                        
    4 In Arizona, aside from their closing arguments, a capital defendant has a right to give a 
    “mitigating statement” at sentencing. State v. McCall, 770 P.2d 1165, 1170 (Ariz. 1989). 
28                                                                        
    5 Respondents do not dispute the duration or course of jury deliberations.   
1   that jurors had been incorrectly told that Bearup was eligible for “parole” if not sentenced 
2   to death. The supreme court affirmed the convictions and sentences, holding that the 
3   “limited mitigation” was insufficient to call for leniency, in light of the two “serious” 
4   aggravating circumstances. Id.                                       
5        In  May  2010,  Bearup’s  postconviction-relief  (PCR)  case  commenced,  and  in 
6   February 2014, Bearup’s PCR counsel filed an amended PCR petition, raising claims of 
7   ineffective assistance of trial counsel (IAC) but did not include the substance of habeas 
8   Claim 45: trial counsel’s failure to ensure the questionnaire accurately reflected that if not 
9   sentenced to death, Bearup was ineligible for parole, and the failure to seek a curative 
10   instruction regarding that incorrect information.6 (Doc. 46-2 at 11–57, 71–87; CR-07-0048-
11   AP “Docket.pdf” at 4.) In March 2015, the trial court dismissed the petition. (Doc. 46-3 at 
12   262 (Ex. YYYYYY).)                                                   
13        On April 30, 2015, Bearup moved for rehearing and to amend the petition with new 
14   supportive evidence regarding a claim in the dismissed petition. The court denied the 
15   motions because it had already dismissed the petition, and the new evidence did not alter 
16   its conclusions. (Id. at 310–74 (Exs. HHHHHHH–JJJJJJJ).) In June 2015, Bearup filed a 
17   petition for review (PFR) in the Arizona Supreme Court; it denied the PFR in September 
18   2016. (CR-15-0225-PC “Docket.pdf”.)                                  
19        Shortly thereafter, Bearup commenced this habeas case, and the Court appointed the 
20   Arizona Federal Public Defender’s Office (FPD) to represent him in federal court but 
21   barred the FPD from representing him in state court, absent “express authorization.” (Doc. 
22   1; Doc. 6 at 1.) In Claim 45 of his amended habeas petition, Bearup raised an IAC claim 
23   based on trial counsel’s failure to challenge jurors being incorrectly told that Bearup was 
24   eligible for parole if not sentenced to death. (Doc. 39 at 384–86.) He conceded that this 
25   claim was not raised in state court but was not procedurally defaulted and, alternatively, 
26   that the ineffective assistance of PCR counsel established cause and prejudice to excuse 
27                                                                        
    6 In Arizona, IAC claims, if any, must be raised in a PCR case, not on direct appeal. State 
28                                                                        
    v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002).                           
1   the default. (Id. at 384.)                                           
2        In early July 2024, Bearup filed a notice concerning the Arizona Supreme Court’s 
3   decision in State v. Anderson, 547 P.3d 345 (Ariz. 2024),7 and his intention, based on 
4   Anderson, to file a motion for stay and abeyance under Rhines, 544 U.S. 269, while he 
5   raises Claim 45 in state court. (Doc. 159.) Bearup subsequently filed his Rhines motion, 
6   which is fully briefed. (Docs. 160–62.)                              
7   II.  APPLICABLE LAW                                                  
8        A.   Rhines Stay                                                
9        A  “mixed”  habeas  petition—that  is,  one  comprised  of  claims  exhausted  and 
10   unexhausted in state court—cannot be “adjudicate[d]” in federal district court. Rhines, 544 
11   U.S. at 273. Under Rhines, the court may stay a habeas case with a “mixed” petition while 
12   the petitioner exhausts his unexhausted claims in state court, before returning to the court 
13   for review of the fully exhausted petition. Id. at 271–79. A Rhines stay is proper only if the 
14   petitioner shows (1) “good cause” for the failure to previously exhaust, (2) the unexhausted 
15   claim  is  “potentially  meritorious,”  and  (3)  the  petitioner  did  not  “intentionally”  use 
16   “dilatory litigation tactics.” Id. at 277–78.                        
17        B.   Exhaustion                                                 
18        A Rhines stay should only be granted if a habeas petition contains an unexhausted 
19   claim for which there is an available remedy in state court. See Rhines, 554 U.S. at 271–
20   79; see also, e.g., White v. Ryan, No. CV-09- 2167-PHX-FJM (LOA), 2010 WL 1416054, 
21   at *12 (D. Ariz. Mar. 16, 2010). A claim is unexhausted if it can be raised in state court 
22   “by any available procedure.” 28 U.S.C. § 2254(c). Conversely, a claim is exhausted if (1) 
23   it has been fairly presented to the highest state court with jurisdiction to consider it or (2) 
24   no state remedy remains available to exhaust the claim. Johnson v. Zenon, 88 F.3d 828, 
25   829 (9th Cir. 1996). A state remedy is unavailable if the state’s procedural rules bar the 
26   state court from considering the claim, making the claim “technically exhausted.” See 
27   Woodford v. Ngo, 548 U.S. 81, 92–93 (2006); Coleman v. Thompson, 501 U.S. 722, 732 

28                                                                        
    7 Anderson is described below.                                       
1   (1991). A technically exhausted claim need not be raised in state court. Engle v. Isaac, 456 
2   U.S. 107, 125 n.28 (1982).                                           
3        For a claim to be found unexhausted, the district court must find that there is an 
4   available remedy in state court. Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998), 
5   overruled on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). A district court may 
6   find a state remedy available if there is a “reasonable probability” of state relief. Matias v. 
7   Oshiro, 683 F.2d 318, 320 (9th Cir. 1982). A reasonable probability exists when it is “not 
8   clear” the claim will be procedurally barred. Cassett v. Stewart, 406 F.3d 614, 616 (9th Cir. 
9   2005).                                                               
10        C.   Arizona’s Bar on Successive IAC Claims                     
11        Rule 32 of the Arizona Rules of Criminal Procedure governs PCR cases for those 
12   convicted and sentenced at trial. Ariz. R. Crim. P. 32.1. Relief is available for IAC claims 
13   under Rule 32.1(a).8 Id. at (a) and cmt.; State v. Goldin, 365 P.3d 364, 368, ¶ 14 (Ariz. Ct. 
14   App. 2015). When no IAC claim is raised in the first PCR case, Rule 32.2(a)(3) precludes 
15   all successive IAC claims unless they assert the violation of a “constitutional right that [can 
16   only] be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. 
17   P. 32.2(a)(3). When an IAC claim was raised in the first PCR case, a successive IAC claim 
18   is precluded, even if the claim asserts the violation of a constitutional right that can only 
19   be waived knowingly, voluntarily, and personally by the defendant. State v. Traverso, 537 
20   P.3d 345, 347–49, ¶¶ 9–13 (Ariz. Ct. App. 2023).                     
21        A non-capital defendant must file a notice of a Rule 32.1(a) PCR claim within 90 
22   days after the oral pronouncement of sentence, Ariz. R. Crim. P. 32.4(b)(3)(A), but in a 
23   capital case, the Arizona Supreme Court files such notice with its mandate affirming the 
24   death sentence, id. at (C). For an untimely PCR case with a Rule 32.1 claim, a defendant 
25   must “adequately explain[]” why the untimely filing is not the “defendant’s fault.” Id. at 
26   32.4(b)(3)(D).                                                       
27                                                                        
    8 Rule 32.1(a) provides for relief on the basis that the defendant’s conviction was obtained, 
28                                                                        
    or the sentence imposed, in violation of the state or federal constitutions.  
1        D.   State v. Anderson                                          
2        Bearup argues that he has an available state remedy under State v. Anderson, and 
3   that  a  successive  PCR  raising  Claim  45  is  not  procedurally  defaulted  or  untimely.  
4   Respondents disagree.                                                
5        On May 2, 2024, after Bearup commenced his habeas case in this Court, the Arizona 
6   Supreme Court issued its decision in Anderson, 547 P.3d 345 (Ariz. 2024). Anderson 
7   involved the following facts. Anderson was convicted by a jury of conspiracy to commit 
8   first-degree murder and sentenced to prison for “life without the possibility of release on 
9   any basis until the service of twenty-five years.” Anderson, 547 P.3d at 348 (emphasis 
10   added). Before trial, Anderson rejected an alleged plea deal that would have resulted in a 
11   sentence of 18 to 22 years, after trial counsel advised him that if convicted at trial, he would 
12   be eligible for parole after 25 years. In the early 2000s, Anderson twice petitioned for PCR 
13   alleging IAC claims; both PCR cases were dismissed with prejudice. Id.  
14        In 2022, as Anderson “attempted to enroll in an educational program” through the 
15   Arizona corrections department, he first learned, that contrary to trial counsel’s advice, he 
16   was not eligible for parole at all. Id. Anderson then filed a third PCR asserting a new IAC 
17   claim based on trial counsel’s incorrectly telling Anderson that he was eligible for parole. 
18   Id. The PCR court found the claim was not precluded under Rule 32.2(a)(3),9 despite not 
19   being raised in Anderson’s prior PCR cases but denied relief on the merits. Id. The Arizona 
20   Court of Appeals found the claim was precluded under Rule 32.2(a)(3) because it had not 
21   been raised in Anderson’s previous PCR cases. Id. (citation omitted). 
22        The Arizona Supreme Court reversed the Arizona Court of Appeals, finding the 
23   claim neither untimely nor precluded. Id. at 353–54. In finding the claim not untimely, the 
24   court applied Rule 32.4(b)(3)(A) (West 2020), which requires a notice of a Rule 32.1(a) 
25   PCR claims to be filed within 90 days after the oral pronouncement of a sentence unless 
26                                                                        

27   9 Rule 32.2(a)(3) precludes postconviction relief on certain claims that could have been—
    but were not—raised at trial, on direct appeal, or on initial PCR. Ariz. R. Crim. P. 
28                                                                        
    32.2(a)(3); State v. Martinez, 250 P.3d 241, 243, ¶ 8 (Ariz. Ct. App. 2011). 
1   “‘the defendant adequately explains why the failure to timely file a notice was not the 
2   defendant’s fault’” under Rule 32.4(b)(3)(D) (West 2020). Anderson, 547 P.3d at 349–50 
3   (quoting Ariz. R. Crim. P. 32.4(b)(3)(D)). The Arizona Supreme Court cited the “pervasive 
4   confusion” among “both the bench and bar” regarding the availability of “parole,” rather 
5   than “release” when Anderson was sentenced. Id. at 348. It found that Anderson had 
6   adequately explained that the untimeliness of his third PCR was not his fault where, before 
7   trial, Anderson’s counsel did not tell him that parole had been abolished and “instead 
8   incorrectly advised him that, if found guilty, he would be eligible for parole after [25] 
9   years.” Id. at 350. It also found that “[h]is delay was not, as the court of appeals reasoned, 
10   the result of a ‘mere failure to recognize a valid claim might exist.’” Id. (quoting Anderson, 
11   2022 WL 17494588, at *1). The court reasoned, “Appellate courts, including [the Arizona 
12   Supreme Court], published decisions as late as 2013 indicating parole was still available 
13   for those convicted of felonies with the possibility of release after [25] years.” Id. (citing 
14   cases).                                                              
15        In finding the claim not precluded, the court reasoned that, like in State v. Diaz, 340 
16   P.3d 1069 (Ariz. 2014),10 Anderson posed “unusual, albeit different circumstances,” such 
17   that the successive PCR was not precluded. Id. at 351. It described that in 1993, the Arizona 
18   Legislature abolished “parole,” but due to confusion about the abolition when Anderson 
19   filed his first two PCR cases, “defendants, attorneys, and courts did not know of or 
20   recognize” that telling a defendant that he was eligible for “parole,” rather than “release,” 
21   e.g., executive clemency or commutation, was incorrect. Id. (citing Chaparro v. Shinn, 459 
22                                                                        
    10 In Diaz, the Arizona Supreme Court found that petitioner’s third PCR case was not 
23   precluded because two different attorneys had failed to file a PCR petition after petitioner 
24   had timely filed PCR notices in his first two PCR cases, resulting in the dismissal of the 
    PCR cases. 340 P.3d at 1069; see also id. at 1070–71. Because counsel had never filed a 
25   petition, petitioner had never previously raised his IAC claims through no fault of his own. 
    See id. at 1069–71. After petitioner noticed a third PCR, a third attorney timely filed a 
26                                                                        
    petition alleging claims for the first time, including that trial counsel rendered ineffective 
27   assistance regarding proffered plea agreements. Id. at 1070. The Arizona Supreme Court 
    found  the  IAC  claim  raised  in  the  third  PCR  was  not  precluded  under  the  unusual 
28                                                                        
    circumstances of that case. Id. at 1069.                             
1   P.3d 50, 54 (Ariz. 2020), holding that “parole” was not synonymous with other forms of 
2   “release”). The Arizona Supreme Court explained that trial counsel’s erroneous advice was 
3   not just a problem of “individual IAC” but also a “systemic failure to recognize” parole’s 
4   abolition. Id. Citing this unique circumstance, the court found that Anderson could not have 
5   reasonably raised his IAC claim until his 2022 PCR notice. Id. That is, it found that the 
6   claim was not cognizable as a known claim when Anderson filed his prior PCR petitions. 
7   Id. For that reason, it found the claim un-precluded under Rule 32.2(a)(3). Id. at 353. 
8   III.  DISCUSSION                                                     
9        A.   Is Claim 45 Exhausted?                                     
10        Because a Rhines stay may only be granted in a habeas case containing exhausted 
11   and unexhausted claims, the Court first considers whether Claim 45 is exhausted—that is, 
12   whether there is clearly no available remedy for relief in state court. See King v. Ryan, 564 
13   F.3d 1133, 1140 (9th Cir. 2009); Cassett, 406 F.3d at 616. Bearup argues that he has an 
14   available state court remedy in light of Anderson. (See Doc. 160 at 2–5; Doc. 161 at 5–6.) 
15   Anderson is an “intervening change in the law” as to when a successive IAC claim—
16   concerning a misstatement that a defendant will be eligible for “parole” if not sentenced to 
17   death—is procedurally barred as precluded or untimely under Rule 32. See Morris v. 
18   Thornell, No. CV-17-00926-PHX-DGC, 2024 WL 3091200, at *2 (D. Ariz. June 20, 
19   2024). Respondents argue that Claim 45 is procedurally barred despite Anderson. The 
20   Court assesses whether either bar clearly applies to Claim 45 in light of Anderson. See 
21   King, 564 F.3d at 1140; Cassett, 406 F.3d at 616. If so, Bearup lacks an available state 
22   remedy for Claim 45 and his motion must be denied.                   
23             1.   Preclusion                                            
24        In Anderson, the Arizona Supreme Court found a successive IAC claim, asserting 
25   trial  counsel  erroneously  advised  his  client  that  he  was  eligible  for  parole,  was  not 
26   precluded. Anderson, 547 P.3d at 350–53, ¶¶ 20–26, 36. Stressing fairness, it refused to 
27   preclude  the  claim  because  the  pervasive  confusion  about  the  availability  of  parole 
28   rendered the claim not cognizable as a known claim throughout Anderson’s 2002 and 2003 
1   PCR cases. Id. at 348, 350–53, ¶¶ 5–6, 20–26. Without determining when the pervasive 
2   confusion in the legal community ended, it noted that such confusion continued in state 
3   appellate courts as late as 2013 and concluded that Anderson—who no longer had PCR 
4   counsel—could not have “reasonably raised” the IAC claim until he himself discovered 
5   that trial counsel had incorrectly advised him, and he raised the claim in 2022. Id. at 348, 
6   350–53, ¶¶ 5–6, 20–26, 36.                                           
7        Bearup’s  PCR  case  continued  until  September  2016  (CR-15-0225-PC 
8   “Docket.pdf”). The Court first considers when the pervasive confusion in Arizona’s legal 
9   community about the unavailability of parole ended and whether Claim 45 was cognizable 
10   while his PCR case, specifically his PFR, was pending in the Arizona Supreme Court. See 
11   Morris, 2024 WL 3091200.                                             
12        In Morris, another division of this Court found that the pervasive confusion ended 
13   either in September 2015, when the Arizona Supreme Court clarified that parole was 
14   available only to certain juveniles and those who committed a felony pre-1994, State v. 
15   Lynch (Lynch I), 357 P.3d 119, 138 (Ariz. 2015), or in May 2016, when the United States 
16   Supreme Court held that the possibility of “release,” such as commutation or pardon, rather 
17   than “parole,” did not justify the trial court’s refusal to instruct the jury that the defendant 
18   was ineligible for parole, Lynch v. Arizona (Lynch II), 578 U.S. 613 (2016) (per curiam). 
19   2024 WL 3091200, at *3–4.11 Lynch I and II were issued after the trial court dismissed 
20   Bearup’s amended PCR petition and denied his motions to amend and for rehearing, and 
21   after Bearup filed his PFR, but before the Arizona Supreme Court ruled on the PFR. Thus, 
22   unlike the claim in Anderson, Claim 45 became cognizable as a known claim before 
23   Bearup’s PCR case effectively ended and while Bearup had PCR counsel. (Doc. 46-2, Ex. 
24   RRRRR; CR-15-0225-PC “Docket.pdf”.)                                  
25        The Court must therefore determine whether Bearup’s counsel clearly could have 
26   reasonably raised Claim 45, after the claim became cognizable as a known claim, no later 
27   than May 2016 following Lynch II, and before Bearup’s PFR was denied in September 

28                                                                        
    11  This Court agrees with the reasoning in Morris.                  
1   2016. See Cassett, 406 F.3d at 616; Anderson, 547 P.3d at 350–53, ¶¶ 20–26, 36. The claim 
2   could have been reasonably raised if Bearup clearly had an available avenue for state relief 
3   before his PFR was denied in September 2016. See Woodford, 548 U.S. at 92–93; Engle, 
4   456 U.S. at 125 n.28; Cassett, 406 F.3d at 616; Johnson, 88 F.3d at 829. If there was clearly 
5   an available avenue, then Claim 45 will be precluded as a successive IAC claim under Rule 
6   32.2(a)(3). See State v. Martinez, 250 P.3d 241, 243, ¶ 8 (Ariz. Ct. App. 2011). 
7        On the record before this Court, it is not clear that Bearup had an available avenue 
8   for state relief before his PCR case became final on the denial of his PFR and while he was 
9   represented by counsel. Bearup’s amended PCR petition did not include Claim 45. In 
10   March 2015, the trial court dismissed Bearup’s PCR case, and on April 30, 2015, it denied 
11   his motions to amend and for rehearing, prior to Claim 45 becoming a “known claim.” 
12   Bearup filed his PFR in June 2015, also before Claim 45 became a “known claim.” No 
13   earlier than September 2015, when Lynch I was decided and no later than May 2016, when 
14   Lynch II was decided, did Claim 45 become a “known claim.” Moreover, it is unlikely that 
15   Bearup would have been able to amend his PFR with Claim 45 because a PFR must contain 
16   only issues previously decided. See Ariz. R. Crim. P. 32.16(c)(2)(B); see also, e.g., State 
17   v. Rowley, No. 2 CA-CR 2023-0139-PR, 2023 WL 4677721, at *1, ¶ 4 (Ariz. Ct. App. July 
18   21, 2023).                                                           
19        Rule of 32.9(d) of the Arizona Rules of Criminal Procedure permits amendments to 
20   a PCR petition for “good cause,” and there is a “liberal policy toward” amendments. 
21   Canion  v.  Cole,  115  P.3d  1261,  1264,  ¶  16  (Ariz.  2005).  But  Arizona  courts  have 
22   inconsistently allowed amendment after a trial court’s denial of PCR, much less while a 
23   PFR is pending before the Arizona Supreme Court. Loya v. Shinn, No. CV-19-02104-PHX-
24   SRB, 2020 WL 5658976, at *6 n.9 (D. Ariz. Sept. 23, 2020). And the PCR court had 
25   already denied amendment before Claim 45 became cognizable as a known claim because 
26   the petition had been dismissed. (Doc. 46-3, Ex. JJJJJJJ.) Presumably, Bearup would have 
27   had to seek a stay in the Arizona Supreme Court and leave to return to the trial court to 
28   seek leave to amend to add Claim 45. It is doubtful that the Arizona Supreme Court or the 
1   trial court would have granted either request. Under these circumstances, the Court finds 
2   that Bearup did not clearly have an available avenue for state relief on Claim 45 between 
3   when Claim 45 became cognizable as a known claim and the denial of Bearup’s PFR. 
4        Nor is it clear that Bearup had an available avenue to raise Claim 45 between the 
5   denial of his PFR and the issuance of Anderson. During most of this time, this habeas case 
6   was pending. Had Bearup’s habeas counsel tried to raise Claim 45 in state court before 
7   Anderson issued, Claim 45 clearly would have been found precluded as a successive PCR, 
8   not  unlike  the  Arizona  Court  of  Appeals  finding  Anderson’s  claim  precluded.12  See 
9   Martinez, 250 P.3d at 243, ¶ 8. For similar reasons, it is at best speculative whether Bearup 
10   would have succeeded on appeal. Thus, the Court concludes that Bearup did not clearly 
11   have an available avenue for state relief on Claim 45 between when Claim 45 became 
12   cognizable as a known claim and issuance of Anderson.                
13        The Court further concludes that there is a reasonable probability of state relief on 
14   Claim 45 under Anderson. The IAC claim in Anderson and Claim 45 center on IAC errors 
15   concerning whether a defendant was eligible for parole when tried. Based on the pervasive 
16   confusion  described  above  regarding  the  availability  of  parole,  neither  claim  was 
17   cognizable as a known claim when the initial PCR petitions were filed. Although Claim 45 
18   became cognizable as a known claim before Bearup’s PFR was denied and while Bearup 
19   had counsel, as discussed above, it is not clear that Bearup could have reasonably raised 
20   Claim 45 after it became cognizable, because Bearup did not clearly have an available 
21   avenue for state relief. The Court finds there is a reasonable probability that Claim 45 is 
22   not precluded under Anderson and under the principle of fairness on which Anderson rests. 
23        Respondents argue that Claim 45 is clearly precluded. (Doc. 39 at 384.) They argue 
24   that by asserting that PCR counsel rendered ineffective assistance by not raising Claim 45 
25   in the first PCR case, Bearup concedes that Claim 45 was cognizable as a known claim 
26   when the amended PCR petition was filed. (Id.) First, Claim 45 was not cognizable as a 
27                                                                        
    12 Indeed, this Court would have been unlikely to authorize habeas counsel to do so prior 
28                                                                        
    to Anderson.                                                         
1   known claim prior to the dismissal of the amended PCR petition, or even the filing of the 
2   PFR.  Moreover,  counsel  may  render  ineffective  assistance  “even  when  the  legal 
3   community has uniformly made the same error.” State v. Miller, 485 P.3d 554, 558, ¶ 14 
4   (Ariz. 2021) (citing Padilla v. Kentucky, 559 U.S. 356, 367 (2010)). And Bearup’s PCR 
5   counsel filed the amended PCR petition a year before the pervasive confusion about 
6   availability of parole ended in the Arizona legal community under Lynch I. For these 
7   reasons, PCR counsel’s failure to raise Claim 45 further supports that Claim 45 was not 
8   cognizable at relevant times and is unexhausted.                     
9             2.   Timeliness                                            
10        In Anderson, the Arizona Supreme Court found the successive IAC claim timely for 
11   the same reasons it found the claim not precluded. 547 P.3d at 349–50, 53, ¶¶ 15–19, 36. 
12   Assuming Rule 32.4(b)(3)(A), or any other timeliness rule, applies to successive PCR 
13   claims in a capital murder case,13 it is not clear that Bearup cannot reasonably explain why 
14   he is not at fault for its untimeliness, analogous to why it is not precluded. Respondents, 
15   moreover, do not contend that the time between Anderson’s issuance and the filing of 
16   Bearup’s Rhines motion clearly render Claim 45 untimely. In sum, Claim 45 is unexhausted 
17   because there is a reasonable probability that Bearup has an avenue for state relief under 
18   Anderson.                                                            
19        B.   Good Cause and No Intentional Dilatory Litigation Tactics  
20        “Good cause” is not fully developed in the Rhines context. Dixon v. Baker, 847 F.3d 
21   714, 720 (9th Cir. 2017). Nonetheless, the Court must determine whether good cause exists 
22   consistent with Rhines, which only permits a stay in “limited circumstances,” and the 
23                                                                        
24   13 A non-capital defendant like Anderson had to file his PCR notice within 90 days after 
    entry of judgment. Ariz. R. Crim. P. 32.4(a)(2)(D) (West 2020). At the time of Bearup’s 
25   first PCR, the Supreme Court clerk “expeditiously” filed a PCR notice “upon issuance of 
    the mandate affirming the defendant’s conviction and sentence on direct appeal.” Id. at 
26                                                                        
    (b)(3)(C) (West 2010). If Rule 32.4(b)(3)(A)—or any other timeliness rule—applies to 
27   successive PCR claims in a capital case, a capital defendant’s failure to raise an IAC claim 
    in his first PCR care would be precluded unless he “adequately explains” why his failure 
28                                                                        
    to do so was not his fault under Rule 32.4(b)(3)(D) (West 2020), in light of Anderson.     
1   Antiterrorism Effective Death Penalty Act of 1996, which seeks to promote finality and 
2   the proper exhaustion of claims. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) 
3   (internal  quotation  marks  omitted).  “Good  cause”  does  not  demand  “extraordinary 
4   circumstances,” id. at 1023–24; it requires a “reasonable excuse, supported by sufficient 
5   evidence,” to explain the failure to have previously exhausted the claim, Blake v. Baker, 
6   745 F.3d 977, 982 (9th Cir. 2014). A bald statement does not suffice. Id.  
7        For the same reasons the Court finds Claim 45 unexhausted under Rhines, good 
8   cause exists for Bearup’s failure to have previously exhausted it. Respondents argue that 
9   those reasons incorrectly rely on the futility doctrine in Sweet v. Cupp, 640 F.2d 233 (9th 
10   Cir. 1981). (Doc. 161 at 6–7.) In Sweet, the Ninth Circuit excused the petitioner’s failure 
11   to first exhaust in state court because it would have been futile. 640 F.2d at 236. The Sweet 
12   court defined the futility doctrine as excusing exhaustion when a state’s highest court had 
13   resolved an issue adversely to the petitioner, and there was no reason to believe the court 
14   would reverse its stance. Id. The United States Supreme Court subsequently rejected the 
15   Sweet doctrine. Engle, 456 U.S. at 130. The Supreme Court explained that if a defendant 
16   believed that he “may find favor” on a constitutional claim in federal court but not in state 
17   court, he must still first present the issue to the state court if he has an available avenue for 
18   relief. Id.                                                          
19        Unlike Sweet, Bearup is not seeking to avoid state-court review of a habeas claim. 
20   See Sweet, 640 F.2d at 236. Bearup seeks state-court review of Claim 45 in order to exhaust 
21   it before the Court considers the petition. (Doc. 160.) Further, the Sweet doctrine applied 
22   to claims not raised in state court because the state’s highest court had previously adversely 
23   resolved the issue on the merits. See Sweet, 640 F.2d at 236–37; Engle, 456 U.S. at 130. 
24   Respondents cite no case in which the Arizona Supreme Court has resolved the issue in 
25   Claim 45 on the merits. On this record, the Court finds there is good cause and does not 
26                                                                        
27                                                                        
28                                                                        
1   find intentional dilatory litigation tactics.14                      
2        C.   Potential Merit                                            
3        The “potential merit” standard is not onerous. Rhines, 544 U.S. at 277. It does not 
4   require “conclusive[ ]” proof that the claim has merit. Dixon, 847 F.3d at 723. A claim has 
5   potential merit “unless ‘it is perfectly clear that the petitioner has no hope of prevailing,’” 
6   id. at 722 (quoting Cassett, 406 F.3d at 624), that is, if it is “perfectly clear” that the claim 
7   is not “colorable,” Cassett, 406 F.3d at 624. A claim without potential merit is “plainly 
8   meritless.” See Rhines, 544 U.S. at 277.                             
9        Claim 45 has potential merit. The Sixth and Fourteenth Amendments entitle a 
10   criminal defendant to the effective assistance of trial counsel. Reece v. State of Georgia, 
11   350 U.S. 85, 90 (1955) (Fourteenth Amendment); Glasser v. United States, 315 U.S. 60, 
12   76 (1942) (Sixth Amendment), superseded on other grounds by rule, as stated in Bourjaily 
13   v. United States, 483 U.S. 171, 181 (1987). Because this right attaches at the start of 
14   “adversary judicial proceedings,” it applies to jury selection and the guilt phase. See Kirby 
15   v. Illinois, 406 U.S. 682, 688–89 (1972) (plurality). A criminal defendant bears the burden 
16   to prove IAC by showing that counsel performed deficiently, and that the deficiency 
17   prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–88, 691–92 (1984). 
18        Claim 45’s deficient-performance prong has potential merit. (Doc. 39 at 384–85.) 
19   In assessing counsel’s performance, a court must make “every effort . . . to eliminate the 
20   distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 
21   conduct,  and  to  evaluate  the  conduct  from  counsel’s  perspective  at  the  time.”  See 
22   Strickland, 466 U.S. at 689. Counsel performs deficiently when their representation falls 
23   “below  an  objective  standard  of  reasonableness”  in  light  of  “prevailing  professional 
24   norms.” Id. at 687–88. Misstating the law to a jury and failing to seek a curative instruction 
25   regarding such misstatement can be deficient performance. E.g., Lankford v. Arave, 468 
26                                                                        

27   14 Respondents do not assert that the time between Anderson and Bearup’s Rhines motion 
    negates good cause or reflects that Bearup used dilatory litigation tactics. (Doc. 161 at 5 
28                                                                        
    n.6.)                                                                
1   F.3d 578 (9th Cir. 2006) (misstating law); see also Wade v. Brockamp, 342 P.3d 142, 152 
2   (Or. App. 2015) (failure to object to misstatement); cf. State v. Lizardi, No. 2 CA-CR 2016-
3   0381-PR, 2017 WL 491649, at *3, ¶ 12 (Ariz. Ct. App. Jan. 25, 2017) (denying, on the 
4   case record, IAC claim alleging failure to object to misstatement).  
5        Respondents  do  not  contest,  and  the  record  supports,  that  counsel  performed 
6   deficiently.  Bearup’s  counsel,  and  the  prosecutor,  created  a  juror  questionnaire  that 
7   incorrectly stated Bearup was eligible for parole if not sentenced to death. (R.O.A. 210 at 
8   17.) Bearup’s counsel also failed to object when the trial court approved the questionnaire 
9   or when the court and the prosecutor repeated the incorrect information to two prospective 
10   jurors, who later served on the jury. (R.T. 11/6/06 at 3–4; R.T. 11/14/06 at 13.) Nor did 
11   counsel seek to correct the instruction at any time while representing Bearup. These 
12   circumstances are sufficient to support potential merit of the deficient performance prong. 
13   Lankford, 468 F.3d 578; Wade, 342 P.3d at 152.                       
14        There is also potential merit to the prejudice prong of Claim 45. (Doc. 39 at 385–
15   86.) Deficient performance is not prejudicial unless there is “a reasonable probability that, 
16   but for the deficiency,” the trial’s result would have been different. Williams v. Taylor, 529 
17   U.S. 362, 394 (2000). The length of jury deliberations can support a finding of prejudice 
18   by implying that the jury “careful[ly] consider[ed] . . . the sentencing options.” See State v. 
19   Escalante-Orozco, 386 P.3d 798, 830, ¶ 126 (Ariz. 2017), abrogated on other grounds by 
20   State v. Escalante, 425 P.3d 1078 (Ariz. 2018).                      
21        The absence of a curative instruction regarding the unavailability of parole has been 
22   found “highly prejudicial.” See Carpenter v. Vaughn, 296 F.3d 138, 158 (3d Cir. 2002). 
23   Whether an accused is eligible for parole is “crucial” to a jury’s decision whether to impose 
24   a death sentence, especially when the accused’s future dangerousness is an issue. Simmons 
25   v. South Carolina, 512 U.S. 154, 164 (1994). Past acts of violence can sharply imply future 
26   dangerousness, Escalante-Orozco, 386 P.3d at 830, ¶ 124 (citing Kelly v. South Carolina, 
27   534 U.S. 246, 253 (2002)), and parole ineligibility may be the strongest guarantee of an 
28   accused’s “future nondangerousness to the public,” Simmons, 512 U.S. at 164 (emphasis 
1   added). Hence, if the State rests its case for a death sentence “at least in part” on a 
2   defendant’s future dangerousness, the alternative sentence of life imprisonment without 
3   parole will “necessarily undercut” the State’s argument. Id. at 168–69.  
4        The incorrect information that Bearup was eligible for parole if not sentenced to 
5   death played a key role at Bearup’s sentencing. The issue of Bearup’s future dangerousness 
6   arose before his trial and became the focal point of the penalty phase. The State argued 
7   Bearup’s past violent acts as aggravating circumstances (R.O.A. 17) and rested its case for 
8   seeking a death sentence on his future dangerousness (R.T. 2/1/07 at 21–23). Yet Bearup’s 
9   counsel helped create the questionnaire, which incorrectly stated that Bearup would be 
10   eligible for parole if not sentenced to death, and failed to try to correct that information. 
11   This sufficiently supports the potential merit of the prejudice prong. See Simmons, 512 U.S. 
12   at 164; Carpenter, 296 F.3d at 158.                                  
13        Respondents argue that the prejudice argument lacks potential merit. (Doc. 161 at 
14   9.) They assert that at the penalty phase, Bearup neither offered mitigating evidence nor 
15   asked for leniency. (Id.) Bearup, however, allocated to the jury that he did not actually kill 
16   the victim, and implied that his co-defendants received prison sentences. (R.T. 2/1/07 at 
17   11–13.) Further, the trial court instructed the jurors to consider evidence from all three 
18   phases of trial (id. at 9–10), the jury deliberated Bearup’s sentence for seven hours over 
19   three days. (id. at 26; R.T. 2/5/07 at 3; Doc. 160 at 9), and the Arizona Supreme Court 
20   found “limited” mitigating circumstances, without considering the incorrect information 
21   provided to the jury regarding Bearup’s parole eligibility, Bearup, 211 P.3d at 695–96, 
22   ¶¶ 62–63. In short, Claim 45 has potential merit notwithstanding Bearup’s waiver of the 
23   right to present mitigating evidence.                                
24        Respondents also argue that the trial court cured any prejudice by instructing the 
25   jury that Bearup would be eligible for “release” if the jury did not sentence him to death. 
26   (Doc. 161 at 8–9.) But the jurors were never instructed about the difference between 
27   “parole” and “release,” commutation or pardon. Moreover, the Arizona Supreme Court has 
28   rejected the “release” argument raised by Respondents. See, e.g., Escalante-Orozco, 386 
1   P.3d at 828 & 830. Respondents otherwise assert that the Arizona Supreme Court’s 
2   independent review of Bearup’s death sentence cured any prejudice. (Doc. 161 at 10–13.) 
3   The court, however, performed the independent review amidst the ongoing widespread 
4   confusion about the availability of parole amongst Arizona appellate courts. See Anderson, 
5   547 P.3d at 351, ¶ 25. Nor did the court address jurors being informed that Bearup would 
6   be eligible for parole if not sentenced to death. This Court cannot say that Bearup could 
7   not prevail on Claim 45 in state court. The Court will grant Bearup’s Rhines motion. 
8   IV.  AUTHORIZATION REQUEST                                           
9        Bearup asks the Court to authorize his habeas counsel to represent him on successive 
10   state PCR under the Criminal Justice Act of 1964 (CJA), 18 U.S.C. § 3599(a)(2). (Doc. 
11   160 at 12–14.) The CJA allows the appointment of counsel for “indigent” defendants in 
12   federal habeas cases, Harbison v. Bell, 556 U.S. 180, 184–85 (2009) (citing 18 U.S.C. 
13   § 3599(a)(2)), and through “every subsequent stage of available judicial proceedings . . . .” 
14   18 U.S.C. § 3599(e). State PCR is not a stage “subsequent” to a federal habeas case. See 
15   Harbison, 556 U.S. at 189 (citing 28 U.S.C. § 2254(b)(1)). Because “[p]etitioners must 
16   exhaust their claims in state court before seeking” habeas relief, id., a “state prisoner” lacks 
17   the “statutory right” to “federally paid counsel” on state PCR, Lugo v. Sec’y, Florida Dep’t 
18   of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014) (citing Harbison, 556 U.S. at 189); see also, 
19   e.g., Hitcho v. Wetzel, No. 16-1156, 2016 WL 8717228, at *3 (E.D. Pa. Oct. 14, 2016) 
20   (acknowledging Lugo).                                                
21        Section 3599(e) nonetheless permits federal court to authorize habeas counsel to 
22   represent a prisoner in “other appropriate motions and procedures,” 18 U.S.C. § 3599(e), 
23   and a federal court may authorize habeas counsel “on a case-by-case basis,” to represent a 
24   habeas petitioner to exhaust the petitioner’s claims in state court. Harbison, 556 U.S. at 
25   190  n.7;  see  also,  e.g.,  Gallegos  v.  Ryan,  No.  CV-01-01909-PHX-NVW,  2017  WL 
26   3822070, at *5 (D. Ariz. July 2017) (stating that, based on Harbison, this “Court has the 
27   discretion to appoint federal counsel to represent [federal habeas petitioner] in state court”). 
28        In granting Bearup’s Rhines motion, the Court finds it appropriate to authorize 
 1 ||  Bearup’s habeas counsel to represent him in exhausting Claim 45 on state PCR. See, e.g., 
2||    Eubanks v. Espinoza, No.  17cv0016 BEN (MDD), 2019 WL 4889734, at *5—6 (S.D. Cal. 
3||    Oct.  3, 2019) (citing King, 564 F.3d at  1141); cf  Samayoa v. Davis, No.:  00cv2118-W 
       (AJB), 2022 WL 16753399, at *2—3 (S.D. Cal. Oct. 7, 2022) (authorizing federal defense 
5 ||  counsel to represent petitioner on state habeas review because competency claim was ripe 
6||    for review in state court). Bearup’s successive state PCR case is “inextricably intertwined 
  ||  with his effort to obtain” the writ here. See Walker v. Baker, 2:15-cv-01240-RFB-GWF, 
8 ||  2016 WL 8735665, at *2 (D. Nev. Jan. 22, 2016). Habeas counsel investigated, researched, 
9||    and argued Claim 45, as well as sought to develop evidence to support it. To conclude, 
       authorization  for  habeas  counsel  to  represent  Bearup  in  a  state  PCR  case  serves  the 
  |}  “interests  of  justice  and  judicial  efficiency.”  /d.  The  Court  will  grant  Bearup’s 
12 ||  authorization. 
13          Accordingly, 
14          IT IS ORDERED granting Bearup’s motion to stay, abey,  and authorize (Doc. 
15 ||  160); staying and abeying this case pending the resolution of Bearup’s state-court PCR 
      proceedings;  and  authorizing  Bearup’s  habeas  counsel  to  represent  him  in  those 
  ||  proceedings. 
18          IT IS FURTHER ORDERED that every 90 days, starting from the filing date of 
       this Order, Bearup must file a status report regarding his state PCR case, and that within 
20 ||  21 days from the conclusion of the PCR case, including review, Bearup must move to lift 
      the stay of this habeas case. 
22                Dated this 30th day of September, 2024. 
23 

5                                              United States District   kadge 
26 
27 
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