Chappell v. Ryan et al

Filing 101

ORDER denying 94 Chappell's Motion for Temporary Stay and Abeyance and for Authorization to Appear in Ancillary State-Court Litigation. Signed by Judge Steven P Logan on 2/1/17.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derek Don Chappell,

No. CV-15-00478-PHX-SPL

Petitioner,

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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 Derek Don Chappell’s Motion for Temporary Stay

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and Abeyance and for Authorization to Appear in Ancillary State-Court Litigation. (Doc.

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94.) Chappell asks the Court to stay and hold his case in abeyance while he pursues state

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court relief. He also seeks permission for his federal habeas counsel to appear on his

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behalf in state court. Respondents filed a response opposing a stay and Chappell filed a

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reply. (Docs. 95, 96.) For the reasons set forth below, the motion is denied.

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I.

BACKGROUND

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A Maricopa County jury convicted Chappell of first degree murder and child

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abuse and determined that he should be sentenced to death. The following information

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concerning the crimes is taken from the Arizona Supreme Court opinion affirming the

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convictions and sentences. State v. Chappell, 225 Ariz. 229, 233–34, 236 P.3d 1176,

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1180–81 (2010).

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Chappell began dating Kristal Shackleford in the fall of 2003. They soon were

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engaged to be married and Shackleford and her two-year-old son, Devon, moved in with

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Chappell and his parents.

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On December 10, 2003, Chappell was caring for Devon while Shackleford was at

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work. While changing Devon’s diaper, Chappell forcefully pushed down on Devon’s

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shoulders and neck until his face turned red. Chappell immediately contacted

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Shackleford, said he had “hurt Devon,” and asked her to come home right away. A

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pediatrician examined Devon later that day and found bruising on his face and neck

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consistent with choking. A Child Protective Services (“CPS”) investigation ensued, and

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CPS told Chappell he was to have no further contact with Devon. Shackleford and Devon

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moved out of the Chappell home and into a nearby apartment complex, but Chappell and

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Shackleford continued dating.

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On March 11, 2004, Shackleford called 911 to report that Devon was missing.

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Police officers found Devon floating in the swimming pool at Shackleford’s apartment

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complex. Devon was pronounced dead at a nearby hospital. An autopsy revealed that the

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cause of death was drowning. Chappell quickly became a suspect and ultimately

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confessed to the murder, both to the police and at a press conference he held from jail.

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Chappell admitted drowning Devon but claimed he was acting at Shackleford’s direction.

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Chappell was indicted on charges of child abuse for the 2003 choking incident and

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first degree murder, and was found guilty on both counts. During the aggravation phase

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of the trial, the jury found three aggravating circumstances: Chappell had a previous

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conviction for a serious offense (child abuse), A.R.S. § 13–751(F)(2); the murder was

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committed in an especially cruel manner, § 13–751(F)(6); and Chappell was an adult and

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the victim was under fifteen years of age at the time of the murder, § 13–751(F)(9). After

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the penalty phase, the jury determined that Chappell should be sentenced to death.

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After unsuccessfully pursuing post-conviction relief, Chappell filed a petition for

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writ of habeas corpus in this Court. (Doc. 25.) Respondents filed an answer and Chappell

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filed a reply. (Docs. 33, 87.) Chappell’s brief on evidentiary development, previously due

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January 23, 2017, is now due on March 9, 2017. (Doc. 99.) He filed the pending motion

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on December 20, 2016. (Doc. 94.)

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Chappell now seeks a stay so that he can return to state court and present several

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claims. In asserting that state court remedies remain, Chappell argues that Hurst v.

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Florida, 136 S. Ct. 616 (2016), represents a significant change in the law, under Arizona

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Rule of Criminal Procedure 32.1(g). He also contends that he can present evidence that

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constitutes newly-discovered material facts under Arizona Rule of Criminal Procedure

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32.1(e). Finally, Chappell argues that the new evidence demonstrates by clear and

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convincing evidence that he would not have been found guilty or the court would not

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have imposed the death penalty, under Arizona Rule of Criminal Procedure 32.1(h).

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II.

ANALYSIS

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Chappell’s habeas petition is governed by the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(b)(1)(A). Although AEDPA does not

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deprive courts of the authority to stay habeas corpus petitions, it “does circumscribe their

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discretion.” Rhines v. Weber, 544 U.S. 269, 276 (2005). The Supreme Court has

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emphasized that the stay and abeyance of federal habeas petitions is available only in

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limited circumstances. Id. at 277. “Staying a federal habeas petition frustrates AEDPA’s

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objective of encouraging finality by allowing a petitioner to delay the resolution of the

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federal proceedings. It also undermines AEDPA’s goal of streamlining federal habeas

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proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court

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prior to filing his federal petition.” Id.

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A writ of habeas corpus may not be granted unless it appears that a petitioner has

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exhausted all available state court remedies. 28 U .S.C. § 2254(b)(1); see also Coleman v.

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Thompson, 501 U.S. 722, 731 (1991). In Arizona, there are two avenues for petitioners to

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exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings

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(“PCR”). Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings

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and provides that a petitioner is precluded from relief on any claim that could have been

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raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive

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effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and

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the petitioner can justify why the claim was omitted from a prior petition or not presented

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in a timely manner. See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(b), 32.4(a).

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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, 544

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U.S. at 277.

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A.

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Chappell contends that under Rule 32.1(g), the United States Supreme Court’s

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recent decision in Hurst provides an available remedy in state court. Rule 32.1(g)

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provides that a defendant may file a petition for post-conviction relief on the ground that

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“[t]here has been a significant change in the law that if determined to apply to

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defendant’s case would probably overturn the defendant’s conviction or sentence.” Ariz.

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R. Crim. P. 32.1(g).

Rule 32.1(g)

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Respondents contend, among other arguments, that a return to state court would be

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futile because the claim does not satisfy Rule 32.1(g). (Doc. 95 at 7–10.) The Court

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agrees.

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Arizona courts have characterized a significant change in the law as a

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“transformative event,” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009),

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and a “clear break” or “sharp break” with the past. State v. Slemmer, 170 Ariz. 174, 182,

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823 P.2d 41, 49 (1991). “The archetype of such a change occurs when an appellate court

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overrules previously binding case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A

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statutory or constitutional amendment representing a definite break from prior law can

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also constitute a significant change in the law. Id. at 119, 203 P.3d at 1179; see State v.

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Werderman, 237 Ariz. 342, 343, 350 P.3d 846, 847 (App. 2015).

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Hurst did nothing to transform Arizona law. In Hurst, the Supreme Court held that

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Florida’s capital sentencing scheme violated Ring. 136 S. Ct. 616. Under the Florida

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scheme, a jury renders an advisory verdict while the judge makes the ultimate factual

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determinations necessary to sentence a defendant to death. Id. at 621–22. The Court held

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that this procedure was invalid because it “does not require the jury to make the critical

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findings necessary to impose the death penalty.” Id. at 622. In reaching this decision, the

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Supreme Court simply applied Ring to Florida’s capital sentencing statutes.

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Hurst does not hold, as Chappell suggests, that a jury is required to find beyond a

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reasonable doubt that the aggravating factors outweigh the mitigating circumstances.

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(Doc. 94 at 4–5.) Hurst held only that Florida’s scheme, in which the jury rendered an

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advisory sentence but the judge made the findings regarding aggravating and mitigating

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factors, violated the Sixth Amendment. 136 S. Ct. at 620. Hurst did not address the

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process of weighing the aggravating and mitigating circumstances. Indeed, the Supreme

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Court has held that the sentencer may be given “unbridled discretion in determining

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whether the death penalty should be imposed after it has found that the defendant is a

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member of the class made eligible for that penalty.” Zant v. Stephens, 462 U.S. 862, 875

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(1983); see Tuilaepa v. California, 512 U.S. 967, 979–80 (1994). In Zant, the Court

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explained that “specific standards for balancing aggravating against mitigating

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circumstances are not constitutionally required.” Id. at 875 n.13; see Franklin v. Lynaugh,

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487 U.S. 164, 179 (1988) (“[W]e have never held that a specific method for balancing

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mitigating and aggravating factors in a capital sentencing proceeding is constitutionally

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required.”).

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In Arizona, in accordance with Ring and Hurst, the jury makes factual findings

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regarding the aggravating and mitigating factors to determine the appropriate sentence.

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Hurst did not effect a change in Arizona law for purposes of Rule 32.1(g).

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Moreover, even if Hurst were a significant change in the law, it does not apply

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retroactively. The Supreme Court has held that “Ring announced a new procedural rule

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that does not apply retroactively to cases already final on direct review.” Schriro v.

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Summerlin, 542 U.S. 348, 358 (2004). Hurst, which applies Ring in Florida, is also

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nonretroactive. This claim does meet the Rule 32.1(g) exception to preclusion. It would

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be futile to stay these proceedings while Chappell raised a claim based on Hurst in state

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court.

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B.

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Under Rule 32.1(e), a claim is not precluded where “[n]ewly discovered material

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facts probably exist and such facts probably would have changed the verdict or

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sentence.” Ariz. R. Crim. P. 32.1(e). 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, or that the court would not have imposed the death penalty.” Ariz. R. Crim. P.

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32.1(h).

Rule 32.1(e) and (h)

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Chappell indicates that in state court he would offer several categories of newly

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discovered evidence: (1) evidence that a juror saw Chappell shackled during his trial and

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sentencing; (2) “expert reports on the causes and implications of petechial bruising”; (3)

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reports from medical experts that Devon’s fractured leg, diagnosed December 3, 2003,

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was a “toddler’s fracture” and the cause was most likely accidental; and (4) “evidence

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supporting a diagnosis of frontal-lobe brain impairment.” (Doc. 94 at 8−9.)   

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32.1(e) or (h). They assert that Chappell has failed to demonstrate “why he could not

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have presented this evidence previously in the Arizona courts if counsel had acted

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diligently.” (See Doc. 95 at 11.) They also argue that the evidence does not qualify as

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“newly discovered material facts.” (Id.) Finally, Respondents contend that the evidence

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does not prove that that Chappell was “actually innocent.” (Id.)

Respondents contend that claims based on this evidence do not satisfy Rule

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Chappell counters that determining whether his claims “meet[s] the requirements

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of Rule 32.1 is a matter for the state court to determine.” (Doc. 96 at 8.) The Court

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disagrees. It is the role of the district court to determine if a petitioner presently has a

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remedy available in state court. See Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)

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(finding it is district court’s role to assess availability of state court remedy). In making

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that decision, the court is required to “assess the likelihood that a state court will accord

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the habeas petitioner a hearing on the merits of his claim.” Phillips v. Woodford, 267 F.3d

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966, 974 (9th Cir. 2001) (citing Harris v. Reed, 489 U.S. 255, 268 (1989) (O’Connor, J.,

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concurring)). The Court therefore will consider whether Chappell has a state court

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remedy under Rule 32.1(e) or (h).

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In order to raise a newly-discovered evidence claim, five requirements must be

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met: (1) the evidence must appear on its face to have existed at the time of trial but be

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discovered after trial; (2) the motion must allege facts from which the court could

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conclude the defendant was diligent in discovering the facts and bringing them to the

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court’s attention; (3) the evidence must not simply be cumulative or impeaching; (4) the

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evidence must be relevant to the case; (5) the evidence must be such that it would likely

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have altered the verdict, finding, or sentence if known at the time of trial. State v. Bilke,

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162 Ariz. 51, 52–53, 781 P.2d 28, 29–30 (1989); Ariz. R. Crim. P. 32.1(e). Based on

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these criteria, Chappell has not presented newly discovered facts.

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“Evidence is not newly discovered unless it was unknown to the trial court, the

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defendant, or counsel at the time of trial and neither the defendant nor counsel could have

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known about its existence by the exercise of due diligence.” State v. Saenz, 197 Ariz.

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487, 490, 4 P.3d 1030, 1033 (App. 2000). “Simply because defendant presents the court

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with evidence for the first time does not mean that such evidence is ‘newly discovered.’”

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State v. Mata, 185 Ariz. 319, 333, 916 P.2d 1035, 1049 (1996).

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All of Chappell’s new evidence could have been known about at the time of trial

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through the exercise of due diligence. Chappell does not argue otherwise. The possibility

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that a juror saw Chappell shackled was considered during his trial. (See Doc. 94 at 7.)

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Evidence of petechial bruising seen on the victim was presented during the guilt phase of

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trial, and evidence of a leg fracture was presented at the penalty phase. (Id. at 6–7.)

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Chappell does not argue that evidence about the causes and implications of petechial

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bruising or the possibility of an accidental “toddler’s fracture” could not have been

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produced through due diligence. Finally, Chappell does not contend that his frontal lobe

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brain-impairment could not have been discovered at trial through due diligence. In fact,

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Chappell alleges in his habeas petition that counsel performed deficiently by failing to

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discover the evidence. (Doc. 25 at 72–78.)

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In addition, the evidence offered by Chappell is not sufficient to establish that no

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reasonable fact-finder would have convicted him of Devon’s murder or that the court

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would not have imposed the death penalty. Ariz. R. Crim. P. 32.1(h). In light of

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Chappell’s confessions to the murder, a reasonable fact-finder would have found him

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guilty even considering the new evidence. Moreover, Chappell’s assertion that he has

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been diagnosed with “frontal-lobe brain impairment” falls short of “clear and convincing

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evidence” that a court would not have sentenced him to death.

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Neither Rule 32.1(e) nor (h) provides a state court remedy for Chappell’s claims.

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Therefore, a stay of the proceedings would be futile.

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III.

APPOINTMENT OF COUNSEL

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Chappell asks the Court to authorize the Federal Public Defender’s (“FPD”) office

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to represent him in state court. The Criminal Justice Act provides for appointed counsel

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to represent their client in “other appropriate motions and procedures.” 18 U.S.C. §

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3599(e).

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The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009),

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holding that the statute “authorizes federally appointed counsel to represent their clients

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in state clemency proceedings and entitles them to compensation for that representation.”

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Id. at 194. The Court explained that “subsection (a)(2) triggers the appointment of

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counsel for habeas petitioners, and subsection (e) governs the scope of appointed

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counsel’s duties.” Id. at 185. The Court noted, however, that appointed counsel is not

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expected to provide each of the services enumerated in section (e) for every client.

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Rather, “counsel’s representation includes only those judicial proceedings transpiring

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‘subsequent’ to her appointment.” Id. at 188.

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Harbison addressed the concern that under the Court’s interpretation of § 3599,

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federally appointed counsel would be required to represent their clients in state retrial or

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state habeas proceedings that occur after counsel’s appointment because such

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proceedings are also “available post-conviction process.” Id. The Court explained that §

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3599(e) does not apply to those proceedings because they are not “properly understood as

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a ‘subsequent stage’ of judicial proceedings but rather as the commencement of new

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judicial proceedings.” Id. at 189. As to state post-conviction proceedings, the Court

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noted, “State habeas is not a stage ‘subsequent’ to federal habeas. . . . That state

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postconviction litigation sometimes follows the initiation of federal habeas because a

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petitioner has failed to exhaust does not change the order of proceedings contemplated by

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the statute.” Id. at 189–90; see Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011); Lugo v.

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Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014), cert. denied sub

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nom. Lugo v. Jones, 135 S. Ct. 1171 (2015) (explaining “a state prisoner is not entitled, as

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a matter of statutory right, to have federally paid counsel assist him in the pursuit and

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exhaustion of his state postconviction remedies, including the filings of motions for state

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collateral relief . . . ”); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1274

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(11th Cir. 2012) (explaining Ҥ 3599 does not provide for federally-funded counsel to

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assist someone standing in Gary’s shoes in pursuing a DNA motion, the results of which

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might serve as the basis for an extraordinary motion for a new trial”).

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Nevertheless, this Court has the discretion to appoint federal counsel to represent

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Chappell in state court. In Harbison the Supreme Court noted that “a district court may

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determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a

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claim in the course of her federal habeas representation.” 556 U.S. at 190 n.7.

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The Court has determined that Chappell is not entitled to a stay, either to exhaust a

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claim based on Hurst or to raise a claim premised on new evidence. Based on that

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determination, together with the Harbison Court’s discussion of the parameters of §

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3599(e), the Court finds it is not appropriate to authorize the FPD to represent Chappell

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in state court.

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IV. CONCLUSION

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Chappell is not entitled to a stay. Hurst is not a significant change in the law for

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purposes of Rule 32.1(g). The new evidence does not satisfy Rule 32.1(e) or (h). The

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Court will exercise its discretion to deny the appointment of the FPD.

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Accordingly,

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IT IS ORDERED denying Chappell’s Motion for Temporary Stay and Abeyance

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and for Authorization to Appear in Ancillary State-Court Litigation. (Doc. 94.)
Dated this 1st day of February, 2017.

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Honorable Steven P. Logan
United States District Judge

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