Chappell v. Ryan et al

Filing 139

ORDER denying Chappell's Motion for Reconsideration of Order Denying Temporary Stay (Doc. 134 ). Signed by Judge Steven P Logan on 8/1/2024. (KJ)

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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,
Petitioner,

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v.

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Ryan Thornell, et al.,

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No. CV-15-00478-PHX-SPL
ORDER
DEATH PENALTY CASE

Respondents.

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Before the Court is Petitioner Derek Don Chappell’s motion to reconsider the Order

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denying his motion to stay this case. (Doc. 134.) Respondents object. (Doc. 136.) For the

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reasons below, the Court will deny reconsideration.

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I.

BACKGROUND

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In 2011, Chappell was sentenced to prison and death following his conviction for

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child-abuse and murder. (R.O.A. 385–86, 532–33, and 603.) The Arizona Supreme Court

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affirmed, State v. Chappell, 236 P.3d 1176, 1180–81, 1190 (Ariz. 2010), abrogated in part

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on other grounds by Cruz v. Arizona, 598 U.S. 17, 21–22 n.1 (2023), and filed a notice for

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postconviction relief (PCR) in the trial court. Chappell then filed a petition for PCR, raising

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claims of ineffective assistance of trial counsel (IAC), which the PCR court denied in June

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2014. (Doc. 70 at 10–17.)

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In 2015, Chappell commenced his habeas proceedings in this Court and later filed

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a petition raising, among other IAC claims, two IAC claims (“the Claims”) not previously

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raised in any court, which challenged the sufficiency of his trial counsel’s investigation

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and presentation of evidence. (Doc. 25 at 79–84, 93–105.) He concedes the Claims are

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procedurally defaulted as waived in state court but argues that the failure of PCR counsel

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to present the Claims in his PCR case establishes cause and prejudice to excuse their

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procedural default. (Id.) The parties completed briefing of the petition in November 2016,

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and completed briefing of a request for evidentiary development1 in May 2017. (Docs. 33,

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87, and 107–08.) Decision on the briefs remain pending.

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In December 2023, Chappell noticed the filing of a successive state PCR case and

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sought a stay of this habeas case while he sought relief on the Claims in his successive

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PCR case. (Doc. 127; Doc. 127-1 at 1–10; Doc. 130-1 at 41–77). Chappell sought the stay

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under this Court’s inherent powers and Rhines v. Weber, 544 U.S. 269 (2005), which allows

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a federal court, in certain circumstances, to stay a habeas case containing both exhausted

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and unexhausted claims while a petitioner returns to state court to exhaust the unexhausted

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claims. (Doc. 127 at 1, 4–8.)

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This Court denied the stay motion because it concluded that the Claims would be

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found waived and precluded in the successive PCR case under Rule 32.2(a)(3) of the

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Arizona Rules of Criminal Procedure, and Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002),

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State v. Spreitz, 39 P.3d 525, 526 (Ariz. 2002), and State v. Traverso, 537 P.3d 345 (Ariz.

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Ct. App. 2023). (Doc. 132 at 4–9.) The Court found that Chappell’s argument that the

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Claims would not be found precluded was speculative. (Id.) For these reasons, the Court

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concluded that Rhines did not apply because the Claims were “technically exhausted,” and

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Chappell did not otherwise justify a stay under the Court’s inherent power. (Id.)

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After this Court denied Chappell’s stay motion, Chappell moved in the PCR court

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to stay his successive PCR case, pending the Arizona Supreme Court’s (1) opinion in State

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v. Anderson, No. CR-23-0008-PR, and (2) the petition for review in Traverso, No. CR 23-

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0264-PR. (Doc. 134-1 at 28–29, 31–32.) On May 2, 2024, the PCR court stayed the

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successive PCR case because decisions in Anderson and Traverso “could provide clear

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Chappell seeks leave, in part, to develop evidence to support the existence of cause and
prejudice and the merits of the Claims. (Doc. 105 at 26–29, 35–39.)
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guidance” on whether the Claims should be found precluded under state law. (Id. at 2.)

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That same day, the Arizona Supreme Court issued its decision in Anderson, 547

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P.3d 345 (Ariz. 2024). Anderson involved the following facts. In 2000, Anderson was

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convicted at trial of conspiracy to commit first-degree murder and sentenced to prison for

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“life without the possibility of release on any basis until the service of twenty-five years.”

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Anderson, 547 P.3d at 348, ¶ 4 (emphasis added). Prior to trial, Anderson rejected an

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alleged plea deal that would have resulted in a sentence of 18 to 22 years, after trial counsel

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advised him that if convicted at trial, he would be eligible for parole after 25 years. In the

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early 2000s, Anderson twice petitioned for PCR alleging IAC claims; both PCR cases were

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dismissed with prejudice. Id., ¶ 5. In 2022, as Anderson was preparing to apply for an

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“educational program,” he learned that contrary to trial counsel’s advice, he was not

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eligible for parole. Id., ¶ 6. Anderson then filed a third PCR asserting a new IAC claim

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based on trial counsel’s erroneous advice about parole eligibility. Id. The PCR court found

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the claim was not precluded under Rule 32.2(a)(3), despite not being raised in Anderson’s

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prior PCR cases, but denied relief on the merits. Id. at *2, ¶ 10. The Arizona Court of

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Appeals found the claim was precluded under Rule 32.2(a)(3) because it had not been

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raised in Anderson’s previous PCR cases. Id., ¶ 11 (citation omitted).

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The Arizona Supreme Court reversed the Arizona Court of Appeals, finding the

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claim was not precluded. Id. at 353–54, ¶ 36. It reasoned that, like in State v. Diaz, 340

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P.3d 1069 (Ariz. 2014),2 Anderson posed “unusual, albeit different circumstances,” such

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In Diaz, the Arizona Supreme Court found that petitioner’s third PCR case was not
precluded because two different attorneys had failed to file a PCR petition after petitioner
had timely filed PCR notices in his first two PCR cases, resulting in the dismissal of the
PCR cases. 340 P.3d at 1069, ¶ 1; see also id. at 1070–71, ¶ 10. Because counsel had never
filed a petition, petitioner had never previously raised his IAC claims through no fault of
his own. See id. at 1069–71. After petitioner noticed a third PCR, a third attorney timely
filed a petition alleging claims for the first time, including that trial counsel rendered
ineffective assistance regarding proffered plea agreements. Id. at 1070, ¶ 5. The Arizona
Supreme Court found the IAC claim raised in the third PCR was not precluded under the
unusual circumstances of that case. Id. at 1069, ¶ 1. The circumstances in Diaz are not
present in Chappell’s successive PCR.
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that the successive PCR was not precluded. It described that in 1993, the Arizona

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Legislature abolished “parole,” but due to confusion about the abolition when Anderson

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filed his first two PCR cases, “defendants, attorneys, and courts did not know of or

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recognize” that telling a defendant that he was eligible for “parole,” rather than “release,”

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e.g., executive clemency or commutation, was erroneous.3 Id., ¶ 18 (citing Chaparro v.

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Shinn, 459 P.3d 50, 54 (Ariz. 2020), holding that “parole” was not synonymous with other

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forms of “release”). The Arizona Supreme Court explained that trial counsel’s erroneous

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advice was not just a problem of “individual IAC” but also a “systemic failure to recognize”

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parole’s abolition. Id. Citing this unique circumstance, the court found that Anderson could

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not have reasonably raised his IAC claim until his 2022 PCR notice. Id. That is, it found

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that the claim was not cognizable as a claim when Anderson filed his prior PCRs. Id. For

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that reason, it found the claim was not precluded under Rule 32.2(a)(3).

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In doing so, the Arizona Supreme Court noted that this exception to Rule 32.2(a)(3)

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preclusion did not apply “broadly to IAC claims” based on erroneous advice about “plea

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agreements.” Id. at 351, ¶ 26. It further noted that Anderson’s IAC claim arose under

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“extremely rare” circumstances: the “pervasive confusion about parole and the

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extraordinary remedies th[e c]ourt and the legislature fashioned to deal with it.” Id. at 351–

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52, ¶ 26 (citations omitted).

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Chappell asks the Court to reconsider denying his stay motion based on Anderson

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and the PCR court’s stay of his successive PCR case. (Doc. 134 at 1-2.) The motion is fully

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briefed. (Docs. 136, 137.)

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II.

Standard for Reconsideration

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Motions for reconsideration should be granted only in rare circumstances.

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Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995); see generally

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The Arizona Supreme Court observed that both it and the Arizona Court of Appeals had
“published decisions as late as 2013 indicating parole was still available for those convicted
of felonies with the possibility of release after twenty-five years,” citing cases. 547 P.3d at
350, ¶ 6.
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LRCiv 7.2(g)(1). A motion for reconsideration is appropriate where the district court “(1)

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is presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”

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Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Such motions should not be used for the purpose of asking a court “‘to rethink what the

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court had already thought through – rightly or wrongly.’” Defenders of Wildlife, 909 F.

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Supp. at 1351 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99,

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101 (E.D. Va. 1983)). A motion for reconsideration “may not be used to raise arguments

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or present evidence for the first time when they could reasonably have been raised earlier

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in the litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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Nor may a motion for reconsideration repeat any argument previously made in support of

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or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215

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F.R.D. 581, 586 (D. Ariz. 2003). Mere disagreement with a previous order is an insufficient

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basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D.

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Haw. 1988).

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III.

Discussion

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Chappell asks the court to reconsider the denial of a stay in light of Anderson and

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the stay of his successive PCR case. (Doc. 134 at 1–2.) In its Order, the Court found

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Chappell had failed to meet the Rhines standard, which Chappell does not meaningfully

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dispute. The Court further concluded that the PCR court would find the Claims precluded

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under Rule 32.2(a)(3)4 and Smith, 46 P.3d at 1071, ¶ 12 (holding that IAC claims raised

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for the first time in a successive PCR are per se barred). (Doc. 132 at 4.) The Court found

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speculative Chappell’s contention to the contrary. (Id.) Chappell asks the Court to

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reconsider its determination that the PCR court would find the Claims precluded based on

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Rule 32.2(a)(3) precludes IAC claims that were waived at trial, on direct appeal, or in a
prior PCR case, “except when the claim” asserts a denial of a “constitutional right that can
only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim.
P. 32.2(a)(3); see also Ariz. R. Crim. P. 32.1(a); State v. Goldin, 365 P.3d 364, 368, ¶ 14
(Ariz. Ct. App. 2015); Ariz. R. Crim. P. 32.1(a) cmt.).
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Anderson and the PCR court’s stay of his successive PCR pending Anderson and a decision

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on a petition for review in Traverso. (Doc. 134 at 5.)

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Anderson centers on Rule 32.2(a)(3)’s requirement that a petitioner “raise all

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known” PCR claims in his first petition. Anderson, 547 P.3d at 350, ¶ 21 (citing Diaz, 340

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P.3d at 1071, ¶ 12). In Anderson, the Arizona Supreme Court recognized a very narrow

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exception to that requirement. That is, when an IAC could not have been raised at the time

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of the petitioner’s first PCR case. Id. at 349–52, ¶¶ 13–26. It reasoned that the claim was

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not a cognizable claim at the time of Anderson’s prior PCR cases because, through no fault

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of Anderson, the claim could not have been reasonably raised in those PCRs due to a

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widespread legal error. Id. at 353, ¶ 36. Anderson, in effect, clarified that preclusion in that

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circumstance did not apply.

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The Claims at issue in Chappell’s successive PCR, however, were fully cognizable

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during his first PCR case, and he fails to cite any analogous widespread legal error that

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made it reasonably unlikely for him to raise the Claims in his first PCR. The Claims

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challenge trial counsel’s investigation and presentation of evidence. (Doc. 25 at 79–84, 93–

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105; Doc. 130-1; Doc. 137-1.) Unlike the IAC claim in Anderson, there is no pervasive

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confusion about trial counsel’s duty to investigate and present evidence, as that duty has

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been well-established. Cf. Anderson, 547 P.3d at 353, ¶ 32 n.1 (noting that “the prevailing

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confusion surrounding parole would taint any attorney’s research”). Similarly, the duty of

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PCR counsel to raise every IAC claim in the first PCR case is and was also well-established

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at the time of Chappell’s first PCR case. See Smith, 46 P.3d at 1071, ¶ 12 (explaining that

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IAC “cannot be raised repeatedly” or piecemeal); Spreitz, 39 P.3d at 526. Indeed, Chappell

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argued in his successive PCR that PCR counsel could have reasonably raised the Claims

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but did not. (Doc. 130-1 at 76–77.) In short, Anderson does not alter this Court’s conclusion

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that the PCR court would find the Claims precluded. Reconsideration on this basis will be

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denied.

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Nor does the PCR court’s stay of Chappell’s successive PCR, pending decision on

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the petition for review in Traverso, alter the Court’s determination that the PCR court will

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find the Claims precluded, or that Chappell’s contentions to the contrary are speculative.

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In Traverso, the PCR court found that Traverso’s successive PCR petition was not

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precluded, but Arizona Court of Appeals reversed finding that the Arizona Supreme Court

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had held in Smith that successive IAC claims are per se barred in a successive PCR case,

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even if Rule 32.2(a)(3)’s personal-waiver exception might otherwise have applied. 537

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P.3d at 347–49, ¶¶ 8–13. It noted that the per se bar recognized in Smith conformed to the

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purposes of preclusion in Rule 32.2(a)(3): to bar repeated, piecemeal litigation. See 46 P.3d

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at 1071, ¶ 12.

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Chappell argues that the PCR court’s refusal to apply the court of appeals’ decision

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in Traverso, pending Traverso’s petition for review, renders his contention that the PCR

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court may find the Claims not precluded less speculative. (Doc. 134 at 2–3, 5 n.2.) It is

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speculative whether the Arizona Supreme Court will grant review, much less grant relief.

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Further, even if the Arizona Supreme Court grants review in Traverso and then overturns

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the per se bar, the Claims would still be barred under Rule 32.2(a)(3). See Traverso, 537

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P.3d at 349, ¶ 14 (aside from the per se bar aside, Rule 32.2(a)(3) also barred the claim).

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Chappell did not raise the Claims in his first PCR case, and he does not show that the

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Claims fall within Rule 32.2(a)(3)’s personal-waiver exception. (See n.6, supra.) Chappell

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otherwise does not cite case law to support that Arizona courts inconsistently apply Rule

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32.2(a)(3) preclusion to claims that were reasonably knowable at the time of the first PCR,

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and that do not fall within the personal-waiver exception. Thus, notwithstanding Traverso,

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the Claims are barred under Rule 32.2(a)(3). Chappell’s contention that the PCR court will

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not find the Claims precluded remains speculative.

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Chappell has not shown that the denial of a stay was clearly erroneous, cited an

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intervening change in controlling law, or cited newly discovered evidence, to the extent

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that such evidence could be considered under the AEDPA. Chappell’s motion for

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reconsideration will be denied. 5

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Chappell asks this Court to defer to the PCR court’s impending ruling on preclusion in
light of the stay of his successive PCR case. (Doc. 137 at 2–5.) As the Court previously
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Accordingly,

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IT IS ORDERED denying Chappell’s Motion for Reconsideration of Order

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Denying Temporary Stay (Doc. 134).
Dated this 1st day of August, 2024.

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Honorable Steven P. Logan
United States District Judge

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observed, “In deciding whether to grant a Rhines stay, this Court must decide if a petitioner
currently has a remedy available in state court.” (Doc. 132 at 4, citing Armstrong v. Ryan,
No. CV-15-00358-TUC-RM, 2017 WL 1152820, at *3 (D. Ariz. Mar. 28, 2017)). Further,
a petitioner must make a “greater showing” to support his request for an indefinite or
indeterminate stay under the Court’s inherent stay power. (Id. at 8–9.) It is clear that the
Claims will be found precluded in state court, a finding they are not precluded is
speculative. This request will be denied.
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