Newell v. Ryan et al
Filing
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ORDER: IT IS ORDERED denying Newell's Motion for Temporary Stay and Abeyance and to Legally Represent Petitioner in State Court Proceedings. (Doc. 72 .) Signed by Judge John J Tuchi on 10/20/2016. (REK)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Steven Ray Newell,
Petitioner,
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No. CV-12-02038-PHX-JJT
DEATH PENALTY CASE
ORDER
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v.
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Charles L Ryan, et al.,
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Respondents.
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Before the Court is Petitioner Steven Ray Newell’s Motion for Temporary Stay
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and Abeyance and to Legally Represent Petitioner in State Court Proceedings. (Doc. 72.)
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Newell asks the Court to stay and hold his case in abeyance while he pursues state court
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relief under Lynch v. Arizona, 136 S. Ct. 1818 (2016) (per curiam). He also seeks
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permission for his federal habeas counsel to appear on his behalf in state court.
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Respondents filed a response in opposition. (Doc. 73.) For the reasons set forth below,
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the motion is denied.
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BACKGROUND
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In 2001, Newell sexually assaulted and murdered an eight-year-old girl. A jury
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convicted him of first-degree murder, sexual conduct with a minor, and kidnapping. He
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was sentenced to death on the first-degree murder conviction. The Arizona Supreme
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Court affirmed the convictions and sentences. State v. Newell, 212 Ariz. 389, 132 P.3d
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833 (2006). After unsuccessfully pursuing post-conviction relief, Newell filed a petition
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for writ of habeas corpus in this Court. (Doc. 38.) In Claim 25 of his habeas petition,
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Newell alleges that the trial court violated his due process rights by instructing the jury
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that if it did not sentence Newell to death, he could be sentenced to life with the
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possibility of parole after 35 years when, in fact, the earliest possibility of parole would
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have been after 58 years. (Id. at 183–84.) Newell did not raise this claim in state court,
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and in Claim 26 he alleges that appellate counsel performed ineffectively in failing to do
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so. (Id. at 186.) Newell asks the Court to stay the case so that he can return to state court
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to raise these allegations.
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ANALYSIS
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When a petitioner has an available remedy in state court that he has not
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procedurally defaulted, it is appropriate for the federal court to stay the habeas
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proceedings if (1) there was good cause for the petitioner’s failure to exhaust his claims
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first in state court, (2) his unexhausted claims are potentially meritorious, and (3) there is
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no indication that he engaged in intentionally dilatory litigation tactics. See Rhines v.
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Weber, 544 U.S. 269, 277 (2005).
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Newell contends that under Rule 32.1(g) of the Arizona Rules of Criminal
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Procedure, the United States Supreme Court’s recent decision in Lynch provides an
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available remedy in state court. Rule 32.1(g) provides that a defendant may file a petition
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for post-conviction relief on the ground that “[t]here has been a significant change in the
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law that if determined to apply to defendant’s case would probably overturn the
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defendant’s conviction or sentence.” Ariz. R. Crim. P. 32.1(g).
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Arizona courts have described a significant change in the law as a “transformative
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event,” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009), and a “clear
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break” or “sharp break” with the past. State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41,
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49 (1991). “The archetype of such a change occurs when an appellate court overrules
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previously binding case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A statutory or
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constitutional amendment representing a definite break from prior law can also constitute
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a significant change in the law. Id. at 119, 203 P.3d at 1179; see State v. Werderman, 237
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Ariz. 342, 343, 350 P.3d 846, 847 (App. 2015).
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In Lynch, 136 S. Ct. 1818, the Supreme Court applied Simmons v. South Carolina,
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512 U.S. 154 (1994), to a capital sentencing in Arizona. Simmons held that when future
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dangerousness is an issue in a capital sentencing determination, the defendant has a due
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process right to require that his sentencing jury be informed of his ineligibility for parole.
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512 U.S. at 171.
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In Lynch, the defendant was convicted of murder and other crimes. 136 S. Ct. at
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1818. Before the penalty phase of his trial began, the state successfully moved to prevent
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his counsel from informing the jury that, if the defendant did not receive a death
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sentence, he would be sentenced to life in prison without possibility of parole.1 Id. at
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1819. The jury sentenced him to death. Id. On appeal, Lynch argued that, because the
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state had made his future dangerousness an issue in arguing for the death penalty, the jury
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should have been given a Simmons instruction stating that the only non-capital sentence
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he could receive under Arizona law was life imprisonment without parole. Id. The
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Arizona Supreme Court affirmed, holding that the failure to give the Simmons instruction
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was not error because the defendant could have received a life sentence that would have
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made him eligible for release after 25 years—even though any such release would have
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required executive clemency. Id. at 1820.
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The United States Supreme Court reversed. Id. The Court reiterated that under
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Simmons and its progeny, “where a capital defendant’s future dangerousness is at issue,
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and the only sentencing alternative to death available to the jury is life imprisonment
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without possibility of parole,” the Due Process Clause “entitles the defendant to inform
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the jury of [his] parole ineligibility, either by a jury instruction or in arguments by
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counsel.” Id. at 1818 (internal quotations omitted). The Court explained that neither the
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possibility of executive clemency nor the possibility that state parole statutes will be
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amended can justify refusing a parole-ineligibility instruction. Id. at 1820.
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When Lynch and Newell were tried, Arizona law prevented all felons who
committed offenses after 1993 from obtaining parole. See A.R.S. § 41-1604.09(I).
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Newell concedes that Lynch was not a clear break from the past and did not
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overturn binding precedent. (Doc. 74 at 2.) Instead, he argues that Lynch was a
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“transformative event . . . for Arizona law [because] it explicitly decided that Arizona’s
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treatment of the Simmons issue was contrary to due process.” (Id. at 3.) Therefore,
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according to Newell, “he now has an available state court remedy for the ongoing federal
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constitutional error, which was not available under state law until Lynch.” (Id.)
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The Court concludes that Lynch does not represent a change in the law. Lynch
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simply applied existing law to an Arizona case. It was not a transformative event of the
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kind described by Arizona courts in interpreting Rule 32.1(g). In Shrum, for example, the
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Arizona Supreme Court cited Ring v. Arizona, 536 U.S. 584 (2002), as a “significant
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change in the law.” 220 Ariz. at 119, 203 P.3d at 1179. Ring “expressly overruled”
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Walton v. Arizona, 497 U.S. 639 (1990). As the Arizona Supreme Court explained,
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“before Ring, a criminal defendant was foreclosed by Walton from arguing that he had a
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right to trial by jury on capital aggravating factors; Ring transformed existing Sixth
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Amendment law to provide for just such a right.” Shrum, 220 Ariz. at 119, 203 P.3d at
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1179.
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In contrast to the holding in Ring, Lynch did not transform Arizona law. The
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holding does not constitute a significant change in law for purposes of Rule 32.1(g).
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Therefore, Newell does not have an available remedy in state court, and a stay is
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inappropriate.
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In addition, Newell’s allegations are not potentially meritorious, as required for
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the Court to issue a stay under Rhines. Newell’s due process rights were not violated. The
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trial court instructed the jury that if it did not sentence Newell to death, the court would
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sentence him “either to life imprisonment without the possibility of parole, or life without
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parole until at least 35 years have passed.” (RT 2/23/04, a.m., at 13; RT 2/24/04 at 50–
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51.) Newell argues in his habeas petition that the instruction was incorrect because he
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actually was not eligible for parole for 58 years. (Doc. 38 at 185.) He now argues that he
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not was eligible for parole at all and therefore under Lynch his due process rights were
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violated by the trial court’s instructions. (See Doc.72 at 3.)
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Under Lynch and Simmons, due process requires a parole ineligibility instruction
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only where the state argues that the defendant’s future dangerousness militates in favor of
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the death penalty. See Lynch, 136 S. Ct. at 1818. Unlike the prosecutors in Simmons and
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Lynch, the State did not make an issue of Newell’s future dangerousness by arguing that
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he would “pose a threat to society in the future.” Simmons, 512 U.S. at 177. The State did
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not explicitly argue that the jury should impose a death sentence in order to protect
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society from Newell. See id. at 157 (noting the prosecution introduced evidence that the
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defendant posed a continuing danger to elderly women and argued the jury should
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impose the death sentence as an act of “self-defense”). Nor did the prosecutor in Newell’s
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case “accentuate[] the clear implication of future dangerousness raised by the evidence.”
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Kelly v. South Carolina, 534 U.S. 246, 255 (2002) (prosecution presented evidence that
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while in prison, Kelly made a knife, attempted to escape, and planned to hold a female
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guard as a hostage, as well as evidence of “Kelly’s sadism at an early age, and his
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inclination to kill anyone who rubbed him the wrong way.”).
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Newell does not contend that the State presented evidence or argued that he would
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be dangerous to society if released. Instead, he asserts that the issue of future
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dangerousness is inherent in all capital sentencings and that the future dangerous element
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can be met without the prosecutor making any specific argument about the issue. (See
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Doc. 71 at 4–5.) This assertion is not persuasive, and Newell does not support it with
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relevant case law. The future dangerousness element cannot be met unless the
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prosecution offers some evidence or argument that a defendant will be a danger if
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released from prison. See Kelly, 534 U.S. at 254 n.4; see also Moeller v. Weber, 635 F.
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Supp. 2d 1036, 1060 (D.S.D. 2009) (“[T]he Supreme Court has not interpreted or
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extended its holding in Simmons . . . to hold that due process requires that a jury in a
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capital case be advised that a person subject to life imprisonment is ineligible for parole
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when . . . the State has presented no evidence at the penalty phase and has not at the
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penalty phase argued future dangerousness.”), order amended on denial of
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reconsideration, No. CIV. 04-4200, 2010 WL 9519011 (D.S.D. Apr. 9, 2010), and aff’d,
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649 F.3d 839 (8th Cir. 2011).
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Finally, because there was no due process violation, appellate counsel did not
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perform ineffectively in failing to raise such a claim. See Jones v. Smith, 231 F.3d 1227,
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1239 n. 8 (9th Cir. 2000) (finding no prejudice when appellate counsel fails to raise an
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issue on direct appeal that is not grounds for reversal); Miller v. Kenney, 882 F.2d 1428,
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1434 (9th Cir. 1989) (explaining that appellate counsel remains above an objective
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standard of competence and does not cause prejudice when he declines to raise a weak
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issue on appeal). Therefore, Newell’s allegation of ineffective assistance of appellate
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counsel is not potentially meritorious.
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CONCLUSION
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Newell is not entitled to a stay. Lynch is not a significant change in the law for
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purposes of Rule 32.1(g). Newell’s claim of a due process violation based on the
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sentencing instructions is not potentially meritorious under Rhines.
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Having determined that Newell is not entitled to a stay to exhaust these
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allegations, the Court finds it is not appropriate to authorize the Federal Public
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Defender’s Office to represent him in state court. See Harbison v. Bell, 556 U.S. 180, 190
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n.7 (2009) (“[A] district court may determine on a case-by-case basis that it is appropriate
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for federal counsel to exhaust a claim in the course of her federal habeas
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representation.”).
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Accordingly,
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IT IS ORDERED denying Newell’s Motion for Temporary Stay and Abeyance
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and to Legally Represent Petitioner in State Court Proceedings. (Doc. 72.)
Dated this 20th day of October, 2016.
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Honorable John J. Tuchi
United States District Judge
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