Spears, et al v. Schriro, et al

Filing 157

ORDER denying 154 Motion to Stay. See order for details. Signed by Senior Judge Stephen M McNamee on 12/4/2017.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Marshall Spears,
Petitioner,

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v.

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No. CV-00-01051-PHX-SMM
DEATH PENALTY CASE

Charles L. Ryan, et al.,

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ORDER

Respondents.

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The case is before the Court on remand from the Ninth Circuit Court of Appeals.

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(Doc. 140.) Pursuant to the remand order, Spears filed a motion in this Court seeking a

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stay of these federal habeas proceedings so that he could exhaust his “toolmarks” claim in

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state court. (Doc. 145.) The Court denied the motion and set a briefing schedule for the

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remaining remanded issues. (Docs. 152, 153.) In response, Spears filed the pending

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motion again seeking a stay while he pursues the toolmarks claim in state court, where he

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has now filed a successive petition for postconviction relief. (Doc. 154.) Respondents

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oppose a stay. (Doc. 155.)

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At issue is Spears’s unexhausted challenge to the trial testimony of the State’s

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ballistics experts. In his first motion for stay, Spears argued that he had available

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remedies in state court under the exceptions to prelusion set forth in Rule 32.1(e) and (h)

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of the Arizona Rules of Criminal Procedure. Under Rule 32.1(e), a claim is not precluded

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where “[n]ewly discovered material facts probably exist and such facts probably would

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have changed the verdict or sentence.” Rule 32.1(h) provides an exception to preclusion

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where “[t]he defendant demonstrates by clear and convincing evidence that the facts

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underlying the claim would be sufficient to establish that no reasonable fact-finder

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would have found defendant guilty of the underlying offense beyond a reasonable

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doubt . . .” Ariz. R. Crim. P. 32.1(h).

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In denying a stay, this Court found that the claim remained procedurally defaulted

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because it was not based on newly-discovered evidence and because Spears did not meet

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the standard for a showing of actual innocence. (Doc. 152.) The Court also found that the

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claim did not “relate back” for purposes of amending Spears’s habeas petition. (Id.)

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In the pending motion, Spears indicates that he has raised a claim under Rule

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32.1(e) and (h) in his second PCR petition in state court. (Doc. 154 at 1.) The fact that

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Spears has now raised the claim in state court does nothing to change the analysis this

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Court used to deny his original motion for a stay to exhaust his toolmarks claim. A stay

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remains inappropriate because there are no available state court remedies and Spears has

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not met his burden of showing the claim is “potentially meritorious.” Rhines v. Weber,

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544 U.S. 269, 277 (2005).

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Accordingly,
IT IS ORDERED denying Spears’s Motion to Stay (Doc. 154).
DATED this 4th day of December, 2017.

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Honorable Stephen M. McNamee
Senior United States District Judge

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