Walton v. Ryan

Filing 31

ORDER denying 21 Petitioner's Motion to Allow Filing of Bifurcated Petition. Signed by Magistrate Judge Lawrence O Anderson on 1/9/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Geary W. Walton,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

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No. CV-11-578-PHX-FJM (LOA)
ORDER

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This matter is before the Court on Petitioner’s Motion to Allow Filing of

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Bifurcated Petition. (Doc. 21) Although the Court permitted Respondents the opportunity to

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respond to this motion, they have not done so and the deadline has passed. Accordingly, the

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motion is ripe for review.

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On March 28, 2011, Petitioner filed a copy of an order from the Ninth Circuit

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Court of Appeals, authorizing him to file a second or successive petition for writ of habeas

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corpus, pursuant to 28 U.S.C. § 2254, in this Court. (Doc. 1) Petitioner subsequently filed a

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Petition for Writ of Habeas Corpus, motion to proceed in forma pauperis, and a motion for

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appointment of counsel. (Doc. 9) The Court granted Petitioner in forma pauperis status.

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(Id.) Pursuant to Rule 8(c) of the Rules Governing Section 2254 proceedings and 18 U.S.C.

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§ 3006A(a)(2), the Court appointed Criminal Justice Act Panel attorney, Patrick E.

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McGillicuddy, to represent Petitioner in this civil matter. (Id.) The Court also granted

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Petitioner leave to file an Amended Petition for Writ of Habeas Corpus. The Court subse-

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quently granted Petitioner an extension to January 31, 2012 to file an Amended Petition, and

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referred this matter to the undersigned Magistrate Judge for further proceedings and to

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prepare a Report and Recommendation. (Doc. 24)
Petitioner has not yet filed an Amended Petition and instead filed the pending

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Motion, seeking leave to file a bifurcated petition. Petitioner argues that the Ninth Circuit

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granted him leave to file a successive petition for writ of habeas corpus on the basis that

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Petitioner, who was convicted of numerous child sex offenses in Maricopa County Superior

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Court, has discovered a medical report, indicating that one or more of the victims was found

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to have no injuries. Petitioner contends that the medical report renders him actually innocent

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of the charges under Schlup v. Delo, 513 U.S. 298 (1995), and therefore, this Court may

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consider his claims that would otherwise have been considered procedurally barred.
Petitioner seeks to file an initial petition, addressing only the issue of actual

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innocence. Then, if the Court finds that Petitioner’s defaulted claims pass through Schlup’s

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gateway for review, Petitioner would file a second petition addressing the merits of his

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claims.

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Petitioner does not cite any authority for proceeding in this manner. Moreover, the

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Rules Governing Section 2254 Cases do not provide for such a procedure. Rather, Rule 2

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provides, in pertinent part, that :

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The Petition must:

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1. specify all the grounds for relief available to the petitioner;

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2. state the facts supporting each ground;

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3. state the relief requested . . . .

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Rule 2, Rules Governing Section 2254 Cases (emphasis added). In view of Rule 2, which

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requires Petitioner to include “all the grounds for relief available to” him in the Petition, the

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Court will deny Petitioner’s request to file a bifurcated petition.

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion to Allow Filing of Bifurcated Petition,

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doc. 21, is DENIED.
Dated this 9th day of January, 2012.

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