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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Derek Don Chappell, No. CV-15-00478-PHX-SPL Petitioner, 10 ORDER 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 15 Before the Court is Petitioner Derek Don Chappell’s Motion for Temporary Stay 16 and Abeyance and for Authorization to Appear in Ancillary State-Court Litigation. (Doc. 17 94.) Chappell asks the Court to stay and hold his case in abeyance while he pursues state 18 court relief. He also seeks permission for his federal habeas counsel to appear on his 19 behalf in state court. Respondents filed a response opposing a stay and Chappell filed a 20 reply. (Docs. 95, 96.) For the reasons set forth below, the motion is denied. 21 I. BACKGROUND 22 A Maricopa County jury convicted Chappell of first degree murder and child 23 abuse and determined that he should be sentenced to death. The following information 24 concerning the crimes is taken from the Arizona Supreme Court opinion affirming the 25 convictions and sentences. State v. Chappell, 225 Ariz. 229, 233–34, 236 P.3d 1176, 26 1180–81 (2010). 27 Chappell began dating Kristal Shackleford in the fall of 2003. They soon were 28 engaged to be married and Shackleford and her two-year-old son, Devon, moved in with 1 Chappell and his parents. 2 On December 10, 2003, Chappell was caring for Devon while Shackleford was at 3 work. While changing Devon’s diaper, Chappell forcefully pushed down on Devon’s 4 shoulders and neck until his face turned red. Chappell immediately contacted 5 Shackleford, said he had “hurt Devon,” and asked her to come home right away. A 6 pediatrician examined Devon later that day and found bruising on his face and neck 7 consistent with choking. A Child Protective Services (“CPS”) investigation ensued, and 8 CPS told Chappell he was to have no further contact with Devon. Shackleford and Devon 9 moved out of the Chappell home and into a nearby apartment complex, but Chappell and 10 Shackleford continued dating. 11 On March 11, 2004, Shackleford called 911 to report that Devon was missing. 12 Police officers found Devon floating in the swimming pool at Shackleford’s apartment 13 complex. Devon was pronounced dead at a nearby hospital. An autopsy revealed that the 14 cause of death was drowning. Chappell quickly became a suspect and ultimately 15 confessed to the murder, both to the police and at a press conference he held from jail. 16 Chappell admitted drowning Devon but claimed he was acting at Shackleford’s direction. 17 Chappell was indicted on charges of child abuse for the 2003 choking incident and 18 first degree murder, and was found guilty on both counts. During the aggravation phase 19 of the trial, the jury found three aggravating circumstances: Chappell had a previous 20 conviction for a serious offense (child abuse), A.R.S. § 13–751(F)(2); the murder was 21 committed in an especially cruel manner, § 13–751(F)(6); and Chappell was an adult and 22 the victim was under fifteen years of age at the time of the murder, § 13–751(F)(9). After 23 the penalty phase, the jury determined that Chappell should be sentenced to death. 24 After unsuccessfully pursuing post-conviction relief, Chappell filed a petition for 25 writ of habeas corpus in this Court. (Doc. 25.) Respondents filed an answer and Chappell 26 filed a reply. (Docs. 33, 87.) Chappell’s brief on evidentiary development, previously due 27 January 23, 2017, is now due on March 9, 2017. (Doc. 99.) He filed the pending motion 28 on December 20, 2016. (Doc. 94.) -2- 1 Chappell now seeks a stay so that he can return to state court and present several 2 claims. In asserting that state court remedies remain, Chappell argues that Hurst v. 3 Florida, 136 S. Ct. 616 (2016), represents a significant change in the law, under Arizona 4 Rule of Criminal Procedure 32.1(g). He also contends that he can present evidence that 5 constitutes newly-discovered material facts under Arizona Rule of Criminal Procedure 6 32.1(e). Finally, Chappell argues that the new evidence demonstrates by clear and 7 convincing evidence that he would not have been found guilty or the court would not 8 have imposed the death penalty, under Arizona Rule of Criminal Procedure 32.1(h). 9 II. ANALYSIS 10 Chappell’s habeas petition is governed by the Antiterrorism and Effective Death 11 Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(b)(1)(A). Although AEDPA does not 12 deprive courts of the authority to stay habeas corpus petitions, it “does circumscribe their 13 discretion.” Rhines v. Weber, 544 U.S. 269, 276 (2005). The Supreme Court has 14 emphasized that the stay and abeyance of federal habeas petitions is available only in 15 limited circumstances. Id. at 277. “Staying a federal habeas petition frustrates AEDPA’s 16 objective of encouraging finality by allowing a petitioner to delay the resolution of the 17 federal proceedings. It also undermines AEDPA’s goal of streamlining federal habeas 18 proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court 19 prior to filing his federal petition.” Id. 20 A writ of habeas corpus may not be granted unless it appears that a petitioner has 21 exhausted all available state court remedies. 28 U .S.C. § 2254(b)(1); see also Coleman v. 22 Thompson, 501 U.S. 722, 731 (1991). In Arizona, there are two avenues for petitioners to 23 exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings 24 (“PCR”). Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings 25 and provides that a petitioner is precluded from relief on any claim that could have been 26 raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive 27 effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and 28 the petitioner can justify why the claim was omitted from a prior petition or not presented -3- 1 in a timely manner. See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(b), 32.4(a). 2 When a petitioner has an available remedy in state court that he has not 3 procedurally defaulted, it is appropriate for the federal court to stay the habeas 4 proceedings if (1) there was good cause for the petitioner’s failure to exhaust his claims 5 first in state court, (2) his unexhausted claims are potentially meritorious, and (3) there is 6 no indication that he engaged in intentionally dilatory litigation tactics. See Rhines, 544 7 U.S. at 277. 8 A. 9 Chappell contends that under Rule 32.1(g), the United States Supreme Court’s 10 recent decision in Hurst provides an available remedy in state court. Rule 32.1(g) 11 provides that a defendant may file a petition for post-conviction relief on the ground that 12 “[t]here has been a significant change in the law that if determined to apply to 13 defendant’s case would probably overturn the defendant’s conviction or sentence.” Ariz. 14 R. Crim. P. 32.1(g). Rule 32.1(g) 15 Respondents contend, among other arguments, that a return to state court would be 16 futile because the claim does not satisfy Rule 32.1(g). (Doc. 95 at 7–10.) The Court 17 agrees. 18 Arizona courts have characterized a significant change in the law as a 19 “transformative event,” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009), 20 and a “clear break” or “sharp break” with the past. State v. Slemmer, 170 Ariz. 174, 182, 21 823 P.2d 41, 49 (1991). “The archetype of such a change occurs when an appellate court 22 overrules previously binding case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A 23 statutory or constitutional amendment representing a definite break from prior law can 24 also constitute a significant change in the law. Id. at 119, 203 P.3d at 1179; see State v. 25 Werderman, 237 Ariz. 342, 343, 350 P.3d 846, 847 (App. 2015). 26 Hurst did nothing to transform Arizona law. In Hurst, the Supreme Court held that 27 Florida’s capital sentencing scheme violated Ring. 136 S. Ct. 616. Under the Florida 28 scheme, a jury renders an advisory verdict while the judge makes the ultimate factual -4- 1 determinations necessary to sentence a defendant to death. Id. at 621–22. The Court held 2 that this procedure was invalid because it “does not require the jury to make the critical 3 findings necessary to impose the death penalty.” Id. at 622. In reaching this decision, the 4 Supreme Court simply applied Ring to Florida’s capital sentencing statutes. 5 Hurst does not hold, as Chappell suggests, that a jury is required to find beyond a 6 reasonable doubt that the aggravating factors outweigh the mitigating circumstances. 7 (Doc. 94 at 4–5.) Hurst held only that Florida’s scheme, in which the jury rendered an 8 advisory sentence but the judge made the findings regarding aggravating and mitigating 9 factors, violated the Sixth Amendment. 136 S. Ct. at 620. Hurst did not address the 10 process of weighing the aggravating and mitigating circumstances. Indeed, the Supreme 11 Court has held that the sentencer may be given “unbridled discretion in determining 12 whether the death penalty should be imposed after it has found that the defendant is a 13 member of the class made eligible for that penalty.” Zant v. Stephens, 462 U.S. 862, 875 14 (1983); see Tuilaepa v. California, 512 U.S. 967, 979–80 (1994). In Zant, the Court 15 explained that “specific standards for balancing aggravating against mitigating 16 circumstances are not constitutionally required.” Id. at 875 n.13; see Franklin v. Lynaugh, 17 487 U.S. 164, 179 (1988) (“[W]e have never held that a specific method for balancing 18 mitigating and aggravating factors in a capital sentencing proceeding is constitutionally 19 required.”). 20 In Arizona, in accordance with Ring and Hurst, the jury makes factual findings 21 regarding the aggravating and mitigating factors to determine the appropriate sentence. 22 Hurst did not effect a change in Arizona law for purposes of Rule 32.1(g). 23 Moreover, even if Hurst were a significant change in the law, it does not apply 24 retroactively. The Supreme Court has held that “Ring announced a new procedural rule 25 that does not apply retroactively to cases already final on direct review.” Schriro v. 26 Summerlin, 542 U.S. 348, 358 (2004). Hurst, which applies Ring in Florida, is also 27 nonretroactive. This claim does meet the Rule 32.1(g) exception to preclusion. It would 28 -5- 1 be futile to stay these proceedings while Chappell raised a claim based on Hurst in state 2 court. 3 B. 4 Under Rule 32.1(e), a claim is not precluded where “[n]ewly discovered material 5 facts probably exist and such facts probably would have changed the verdict or 6 sentence.” Ariz. R. Crim. P. 32.1(e). Rule 32.1(h) provides an exception to preclusion 7 where “[t]he defendant demonstrates by clear and convincing evidence that the facts 8 underlying the claim would be sufficient to establish that no reasonable fact-finder 9 would have found defendant guilty of the underlying offense beyond a reasonable 10 doubt, or that the court would not have imposed the death penalty.” Ariz. R. Crim. P. 11 32.1(h). Rule 32.1(e) and (h) 12 Chappell indicates that in state court he would offer several categories of newly 13 discovered evidence: (1) evidence that a juror saw Chappell shackled during his trial and 14 sentencing; (2) “expert reports on the causes and implications of petechial bruising”; (3) 15 reports from medical experts that Devon’s fractured leg, diagnosed December 3, 2003, 16 was a “toddler’s fracture” and the cause was most likely accidental; and (4) “evidence 17 supporting a diagnosis of frontal-lobe brain impairment.” (Doc. 94 at 8−9.)    18   19 32.1(e) or (h). They assert that Chappell has failed to demonstrate “why he could not 20 have presented this evidence previously in the Arizona courts if counsel had acted 21 diligently.” (See Doc. 95 at 11.) They also argue that the evidence does not qualify as 22 “newly discovered material facts.” (Id.) Finally, Respondents contend that the evidence 23 does not prove that that Chappell was “actually innocent.” (Id.) Respondents contend that claims based on this evidence do not satisfy Rule 24 Chappell counters that determining whether his claims “meet[s] the requirements 25 of Rule 32.1 is a matter for the state court to determine.” (Doc. 96 at 8.) The Court 26 disagrees. It is the role of the district court to determine if a petitioner presently has a 27 remedy available in state court. See Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) 28 (finding it is district court’s role to assess availability of state court remedy). In making -6- 1 that decision, the court is required to “assess the likelihood that a state court will accord 2 the habeas petitioner a hearing on the merits of his claim.” Phillips v. Woodford, 267 F.3d 3 966, 974 (9th Cir. 2001) (citing Harris v. Reed, 489 U.S. 255, 268 (1989) (O’Connor, J., 4 concurring)). The Court therefore will consider whether Chappell has a state court 5 remedy under Rule 32.1(e) or (h). 6 In order to raise a newly-discovered evidence claim, five requirements must be 7 met: (1) the evidence must appear on its face to have existed at the time of trial but be 8 discovered after trial; (2) the motion must allege facts from which the court could 9 conclude the defendant was diligent in discovering the facts and bringing them to the 10 court’s attention; (3) the evidence must not simply be cumulative or impeaching; (4) the 11 evidence must be relevant to the case; (5) the evidence must be such that it would likely 12 have altered the verdict, finding, or sentence if known at the time of trial. State v. Bilke, 13 162 Ariz. 51, 52–53, 781 P.2d 28, 29–30 (1989); Ariz. R. Crim. P. 32.1(e). Based on 14 these criteria, Chappell has not presented newly discovered facts. 15 “Evidence is not newly discovered unless it was unknown to the trial court, the 16 defendant, or counsel at the time of trial and neither the defendant nor counsel could have 17 known about its existence by the exercise of due diligence.” State v. Saenz, 197 Ariz. 18 487, 490, 4 P.3d 1030, 1033 (App. 2000). “Simply because defendant presents the court 19 with evidence for the first time does not mean that such evidence is ‘newly discovered.’” 20 State v. Mata, 185 Ariz. 319, 333, 916 P.2d 1035, 1049 (1996). 21 All of Chappell’s new evidence could have been known about at the time of trial 22 through the exercise of due diligence. Chappell does not argue otherwise. The possibility 23 that a juror saw Chappell shackled was considered during his trial. (See Doc. 94 at 7.) 24 Evidence of petechial bruising seen on the victim was presented during the guilt phase of 25 trial, and evidence of a leg fracture was presented at the penalty phase. (Id. at 6–7.) 26 Chappell does not argue that evidence about the causes and implications of petechial 27 bruising or the possibility of an accidental “toddler’s fracture” could not have been 28 produced through due diligence. Finally, Chappell does not contend that his frontal lobe -7- 1 brain-impairment could not have been discovered at trial through due diligence. In fact, 2 Chappell alleges in his habeas petition that counsel performed deficiently by failing to 3 discover the evidence. (Doc. 25 at 72–78.) 4 In addition, the evidence offered by Chappell is not sufficient to establish that no 5 reasonable fact-finder would have convicted him of Devon’s murder or that the court 6 would not have imposed the death penalty. Ariz. R. Crim. P. 32.1(h). In light of 7 Chappell’s confessions to the murder, a reasonable fact-finder would have found him 8 guilty even considering the new evidence. Moreover, Chappell’s assertion that he has 9 been diagnosed with “frontal-lobe brain impairment” falls short of “clear and convincing 10 evidence” that a court would not have sentenced him to death. 11 Neither Rule 32.1(e) nor (h) provides a state court remedy for Chappell’s claims. 12 Therefore, a stay of the proceedings would be futile. 13 III. APPOINTMENT OF COUNSEL 14 Chappell asks the Court to authorize the Federal Public Defender’s (“FPD”) office 15 to represent him in state court. The Criminal Justice Act provides for appointed counsel 16 to represent their client in “other appropriate motions and procedures.” 18 U.S.C. § 17 3599(e). 18 The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009), 19 holding that the statute “authorizes federally appointed counsel to represent their clients 20 in state clemency proceedings and entitles them to compensation for that representation.” 21 Id. at 194. The Court explained that “subsection (a)(2) triggers the appointment of 22 counsel for habeas petitioners, and subsection (e) governs the scope of appointed 23 counsel’s duties.” Id. at 185. The Court noted, however, that appointed counsel is not 24 expected to provide each of the services enumerated in section (e) for every client. 25 Rather, “counsel’s representation includes only those judicial proceedings transpiring 26 ‘subsequent’ to her appointment.” Id. at 188. 27 Harbison addressed the concern that under the Court’s interpretation of § 3599, 28 federally appointed counsel would be required to represent their clients in state retrial or -8- 1 state habeas proceedings that occur after counsel’s appointment because such 2 proceedings are also “available post-conviction process.” Id. The Court explained that § 3 3599(e) does not apply to those proceedings because they are not “properly understood as 4 a ‘subsequent stage’ of judicial proceedings but rather as the commencement of new 5 judicial proceedings.” Id. at 189. As to state post-conviction proceedings, the Court 6 noted, “State habeas is not a stage ‘subsequent’ to federal habeas. . . . That state 7 postconviction litigation sometimes follows the initiation of federal habeas because a 8 petitioner has failed to exhaust does not change the order of proceedings contemplated by 9 the statute.” Id. at 189–90; see Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011); Lugo v. 10 Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014), cert. denied sub 11 nom. Lugo v. Jones, 135 S. Ct. 1171 (2015) (explaining “a state prisoner is not entitled, as 12 a matter of statutory right, to have federally paid counsel assist him in the pursuit and 13 exhaustion of his state postconviction remedies, including the filings of motions for state 14 collateral relief . . . ”); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1274 15 (11th Cir. 2012) (explaining “§ 3599 does not provide for federally-funded counsel to 16 assist someone standing in Gary’s shoes in pursuing a DNA motion, the results of which 17 might serve as the basis for an extraordinary motion for a new trial”). 18 Nevertheless, this Court has the discretion to appoint federal counsel to represent 19 Chappell in state court. In Harbison the Supreme Court noted that “a district court may 20 determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a 21 claim in the course of her federal habeas representation.” 556 U.S. at 190 n.7. 22 The Court has determined that Chappell is not entitled to a stay, either to exhaust a 23 claim based on Hurst or to raise a claim premised on new evidence. Based on that 24 determination, together with the Harbison Court’s discussion of the parameters of § 25 3599(e), the Court finds it is not appropriate to authorize the FPD to represent Chappell 26 in state court. 27 IV. CONCLUSION 28 Chappell is not entitled to a stay. Hurst is not a significant change in the law for -9- 1 purposes of Rule 32.1(g). The new evidence does not satisfy Rule 32.1(e) or (h). The 2 Court will exercise its discretion to deny the appointment of the FPD. 3 Accordingly, 4 IT IS ORDERED denying Chappell’s Motion for Temporary Stay and Abeyance 5 6 and for Authorization to Appear in Ancillary State-Court Litigation. (Doc. 94.) Dated this 1st day of February, 2017. 7 8 Honorable Steven P. Logan United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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