Purcell #147003 v. Ryan et al

Filing 50

ORDER overruling the Objections to the Magistrate's Report and Recommendation (Doc. 47 ). IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court (Doc. 46 ). IT IS FURTHER ORDERED stayin g this matter until final resolution of Petitioner's state court proceedings. IT IS FURTHER ORDERED directing Respondents to file a status report regarding the progress of Petitioner's state court proceedings every ninety (90) days from t he date of this Order. IT IS FURTHER ORDERED that Petitioner shall file a notice with the Court within fourteen (14) days of the conclusion of his state court proceedings. See document for complete details. Signed by Senior Judge Susan R Bolton on 8/16/2022. (WLP)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bobby Purcell,
Petitioner,

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v.

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Charles L Ryan, et al.,

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No. CV-15-01316-PHX-SRB (ESW)
ORDER

Respondents.

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The Court now considers Petitioner Bobby Charles Purcell’s (“Petitioner”) Petition

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Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody

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(“Petition”). (Doc. 1, (“Pet.”).) The Court referred the matter to Magistrate Judge Eileen S.

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Willett for a Report and Recommendation (“R&R”), and on May 9, 2022 she recommended

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that this matter be stayed pending resolution of Petitioner’s state court proceedings. (See

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Doc. 46, R. & R.) Petitioner timely objected. (See Doc. 47, Objs. to R. & R. (“Objs.”).)

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Respondents filed a Response to the Objections on June 3, 2022. (See Doc. 48, Resp. to

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Objs. (“Resp.”).) Having reviewed the record de novo, the Court overrules the Objections,

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adopts the R&R, and stays this matter.

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I.

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BACKGROUND
The unique background of this case was thoroughly summarized in the R&R and is

incorporated herein:
On July 14, 2015, Petitioner filed a Petition for Writ of Habeas
Corpus. As detailed in the Court’s Screening Order:
Petitioner was convicted in Maricopa County Superior Court,

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case #CR1998-008705, of two counts of first-degree murder,
nine counts of attempted first-degree murder, and one count
each of aggravated assault and misconduct involving weapons.
He was sentenced to multiple terms of imprisonment, including
two terms of natural life imprisonment.
In his single ground for relief, Petitioner asserts that his life sentences were
unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460 (2012) because
they were imposed for crimes he committed when he was sixteen years old.
In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court established
procedural requirements that must be followed before a court may impose
such a sentence on a juvenile homicide offender.
In Montgomery v. Louisiana, 136 S. Ct. 718, 725 (2016), the Supreme
Court explained that Miller “held that a juvenile convicted of a homicide
offense could not be sentenced to life in prison without parole absent
consideration of the juvenile’s special circumstances in light of the principles
and purposes of juvenile sentencing.” The Supreme Court determined that
Miller announced a new substantive rule of constitutional law that is to be
retroactively applied. Id. at 736. The Supreme Court also clarified that
Miller’s holding has a procedural component. Id. at 734. That is, “Miller
requires a sentencer to consider a juvenile offender’s youth and attendant
characteristics before determining that life without parole is a proportionate
sentence.” Id. “A hearing where ‘youth and its attendant characteristics’ are
considered as sentencing factors is necessary to separate those juveniles who
may be sentenced to life without parole from those who may not.” Id. at 735.
That hearing “gives effect to Miller’s substantive holding that life without
parole is an excessive sentence for children whose crimes reflect transient
immaturity.” Id. The Court reiterated the statement in Miller “that a lifetime
in prison is a disproportionate sentence for all but the rarest of children, those
whose crimes reflect ‘irreparable corruption.’” Id. at 726. Lack of “a formal
factfinding requirement does not leave States free to sentence a child whose
crime reflects transient immaturity to life without parole.” Id. at 735.
On October 16, 2015, the Court granted Petitioner’s Motion
requesting that the Court stay the habeas proceeding pending resolution of
his state court appeal concerning the dismissal of his petition for postconviction relief.
After the Arizona Supreme Court denied Petitioner’s Petition for
Review, Petitioner sought certiorari review in the United States Supreme
Court. On October 31, 2016, the United States Supreme Court granted the
petition for certiorari, vacated the Arizona Court of Appeals decision
affirming the trial court’s denial of post-conviction relief, and remanded the
matter to the Arizona Court of Appeals for further consideration in light of
Montgomery v. Louisiana, 135 S. Ct. 718 (2016).
The Arizona Court of Appeals issued an Order directing the parties to
file supplemental briefs regarding the issues to be decided on remand. Instead
of filing a supplemental brief, the State stipulated that in light of
Montgomery, the Arizona Court of Appeals should grant post-conviction
relief and remand the case to the trial court for resentencing. On February 16,
2018, the Arizona Court of Appeals accepted the State’s stipulation and
remanded the case to the trial court for resentencing.
On March 1, 2018, as it appeared that the state courts granted his
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requested relief, Petitioner moved to voluntarily dismiss his Petition for Writ
of Habeas Corpus as moot. On March 6, 2018, the Court lifted the stay and
dismissed the case as moot.
On April 22, 2021, the United States Supreme Court issued its opinion
in Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Supreme Court clarified
that Miller did not require that a sentencing court make any specific finding
of permanent incorrigibility or any on-the-record explanation with an
implicit finding of permanent incorrigibility. Id. at 1314–15, 1319–21.
Rather, it is sufficient that a sentencing court has the discretion to consider
“an offender’s youth and attendant characteristics” and the discretion to
sentence the offender to a term less than life without parole in order to satisfy
Miller. Id. at 1316–18.
On June 18, 2021, the State filed a motion in the trial court requesting
that, in light of Jones, the State be permitted to withdraw from its stipulation
to resentencing. In its Motion to Withdraw, the State asserted that:
The pending resentencing should be vacated because after
Jones it is clear that Purcell’s discretionary natural life
sentences, where the court could have imposed a lesser
sentence and considered Purcell’s youth and attendant
characteristics, are constitutional under Miller, 567 U.S. at
477–78, and no resentencing is required. Although the State
stipulated to resentencing in the Arizona Court of Appeals, the
stipulation was made in light of Montgomery after remand
from the Supreme Court based on the Courts’ incorrect
broadened interpretation of Montgomery. . . . After Jones, the
basis for the stipulation to resentencing—“in light of
Montgomery”—no longer exists.
The State further asserted that “the State should be permitted to withdraw
from the stipulation to resentencing because the state of the law upon which
the
stipulation
was
based—in
light
of
Montgomery—has
changed. . . . Jones’s clarification of what Miller held, and what Montgomery
did not hold, provides good cause for this Court to relieve the State of its
stipulation to resentencing and vacate the resentencing proceedings.”
In a minute entry filed on November 16, 2021, the trial court
concluded that Jones constitutes a change in the state of the law and that the
trial court may thus “deviate from the mandate and relieve the State of the
stipulation it made in the Court of Appeals.” The trial court stated that “[t]o
find otherwise would be to engage in a resentencing that is not
constitutionally required under the law as it currently stands.” In explaining
why it was vacating the resentencing hearing and dismissing Petitioner’s
petition for post-conviction relief, the trial court stated:
First, the Court finds that Purcell’s sentencing complied with
the requirement that the sentencer have the discretion to
sentence him to a sentence less than natural life. Under A.R.S.
§ 13-703, the sentencing options available to the trial court
were natural life or life with the possibility of release after 25
years. Thus, Purcell’s natural life sentences were not
mandatory.
Second, even if Miller applies, the trial court thoroughly
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considered Purcell’s youth and attendant characteristics, and
thus satisfied Miller. In Jones, the Supreme Court found that
Miller held that a sentence need not make a finding of
permanent incorrigibility to impose a sentence of life without
parole, but must only consider the offender’s “youth and
attendant characteristics.” Jones at 1311, quoting Miller at 483.

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Here, the trial court considered the fact that Purcell was 16
years of age at the time of the homicides, as well as his lack of
family support, including “parental rejection, abandonment
and abuse.” The Court considered that no adult in Purcell’s life
was willing or able to make Purcell a priority, and that at the
age of sixteen, he could not cope with his tremendous problems
on his own. Thus, the trial court satisfied Miller’s
requirements.

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Following the trial court’s ruling, Petitioner filed a notice of appeal in
the Arizona Court of Appeals. On December 7, 2021, the Arizona Court of
Appeals dismissed the appeal, explaining that a defendant convicted at trial
who seeks appellate review of a trial court’s final decision in a postconviction proceeding must file a petition for review. Petitioner moved for
reconsideration, which the Arizona Court of Appeals denied. On December
22, 2021, Petitioner petitioned the Arizona Supreme Court for review of [the]
Arizona Court of Appeals’ order dismissing Petitioner’s appeal. On April 5,
2022, the Arizona Supreme Court granted the Petition for Review.”

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(R. & R. at 2–5 (record citations and footnote omitted).) The Arizona Supreme Court is set

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to hear oral argument on a single issue—whether the Arizona Court of Appeals erred “by

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concluding that it did not have appellate jurisdiction over the dismissal of the re-sentencing

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proceedings”—on October 12, 2022.1 (Doc. 43-2, Ex. U, Pet. for Rev. of Order Dis. App.

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at 3; Doc. 45, Ex. A, Not. of Ariz. Supr. Ct. Action; Ariz. Supr. Ct. 06/09/22 Order.)

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On December 20, 2021, Petitioner moved to reopen this case in light of the State’s

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successful withdrawal from its stipulation.2 (See Doc. 34, Mot. to Reopen.) On January 27,

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2022, the Court adopted a report and recommendation of Magistrate Judge Willet

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recommending reopening, granted the motion, and reopened the case. (Doc. 42, 01/27/22

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Order.) Respondents then filed a Limited Answer to the Petition on March 7, 2022,

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The Arizona Supreme Court originally scheduled oral argument for June 16, 2022, but it
granted Petitioner’s motion to continue and rescheduled for October 12, 2022. (See Doc.
49-1, Ariz. Supr. Ct. 06/09/2022 Order.)
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The Court notes that the State stipulated to resentencing in almost every Arizona case
from the U.S. Supreme Court’s 2016 remand but has since successfully withdrawn from
those stipulations. See Tatum v. Ryan, No. CV-15-00711-PHX-DJH, 2022 WL 1469790,
at *1 (D. Ariz. May 10, 2022); Arias v. Shinn, No. CV-15-01236-PHX-GMS (MHB), 2022
WL 464910, at *1 (D. Ariz. Jan. 19, 2022); (DeShaw v. Pacheco, No. 2:16-cv-04607-DLRJZB, Doc. 39-23 at 2.).
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requesting that the Petition either be stayed and held in abeyance or denied and dismissed

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without prejudice. (Doc. 43, Limited Ans. to Pet.) Petitioner filed his Reply to the Limited

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Answer on April 5, 2022. (Doc. 44, Reply to Limited Ans.) Magistrate Judge Willet

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“concur[red] with Respondents that the District Court should stay this matter pending

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resolution of Petitioner’s state court proceedings” and recommended a stay. (R. & R. at 5–

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6.)

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II.

LEGAL STANDARD

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A district court must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28

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U.S.C. § 636(b)(1). A court need review only those portions objected to by a party,

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meaning a court can adopt without further review all portions not objected to. See United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). For those portions of a

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Magistrate Judge’s findings and recommendations to which neither party has objected, the

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Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152

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(1985) (“There is no indication that Congress . . . intended to require a district judge to

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review a magistrate’s report to which no objections are filed.”); Reyna–Tapia, 328 F.3d at

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1121 (“[T]he district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.”).

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III.

OBJECTIONS

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Petitioner presents two objections to the R&R: (1) the Magistrate Judge erred by

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finding that he had not exhausted his Miller claim and therefore recommending a stay; and

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(2) the Magistrate Judge erred by not considering his argument that he is exempt from the

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exhaustion requirement. (Objs. at 1–3.) The Court addresses each objection in turn.

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A.

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Prisoners in state custody may petition the federal courts for a writ of habeas corpus

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to remedy violations of their federal constitutional rights. 28 U.S.C. § 2254(a). However,

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for a federal court to consider claims under 28 U.S.C. § 2254, a petitioner must first exhaust

Exhaustion

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all remedies in the state courts, “thus giving those courts the first opportunity to review all

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claims of constitutional error.” Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017) (quoting

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Rose v. Lundy, 455 U.S. 509, 518–19 (1982)); 28 U.S.C. § 2254(b)(1)(A). By requiring the

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state courts to have had this opportunity, exhaustion “protects the state courts’ role in the

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enforcement of federal law and prevents disruption of state judicial proceedings.” Dixon,

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847 F.3d at 718 (cleaned up). “The exhaustion requirement is rooted in the principle of

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comity, and ‘reduces friction between the state and federal court systems by avoiding the

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unseem[lines] of a federal district court’s overturning a state court conviction without the

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state courts having had an opportunity to correct the constitutional violation in the first

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instance.’” Alfaro v. Johnson, 862 F.3d 1176, 1180 (9th Cir. 2017) (quoting O’Sullivan v.

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Boerckel, 526 U.S. 838, 845 (1999)) (alteration in original).

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To properly exhaust claims in Arizona, a petitioner must fairly present them to the

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Arizona Court of Appeals via either direct appeal of conviction or through appropriate

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post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)

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(“[E]xcept in habeas petitions in life-sentence or capital cases, claims of Arizona state

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prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals

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has ruled on them.”). If a petitioner fails to present the exact federal claim raised in habeas

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in prior proceedings or fails to present such a claim in one full round of the state appellate

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process, the claim is unexhausted. See O’Sullivan, 526 U.S. at 845 (“State prisoners must

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give the state courts one full opportunity to resolve any constitutional issues by invoking

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one complete round of the State’s established appellate review process.”); Picard v.

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Connor, 404 U.S. 270, 275 (1971) (“It has been settled . . . that a state prisoner must

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normally exhaust available state judicial remedies before a federal court will entertain his

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petition for habeas corpus.”).

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Petitioner argues that he has already exhausted his Miller claim because once the

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Arizona Court of Appeals accepted the stipulation to resentence him and remanded his case

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back to superior court, he had successfully completed one full round of Arizona’s

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established appellate review process. (Objs. at 1–2; Reply to Limited Ans. at 4–5.)

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Petitioner contends that because “the exhaustion doctrine does not demand repeated

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exhaustion of the same claim,” the Court may proceed to the merits. (Objs. at 2.) He also

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faults the Magistrate Judge for failing to cite either Rhines v. Weber, 544 U.S. 269 (2005)

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or Mena v. Long, 813 F.3d 907 (9th Cir. 2016) in recommending a stay. (Id. at 3.)

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Respondents counter that Petitioner has not yet exhausted his Miller claim because

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it is Petitioner’s original post-conviction petition for relief that remains at issue in state

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court. (Resp. at 3.) And because there is, as of yet, no Arizona Court of Appeals decision

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addressing the analysis of the superior court’s dismissal of that petition, Respondents claim

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that Petitioner has not completed one round of Arizona’s appellate review process. (Id. at

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3–4.) Therefore, contrary to Petitioner’s arguments, the state court “proceedings constitute

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a continuous, lengthy litigation of the trial court’s denial of [his] original petition for relief”

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and not an entirely new round of appellate review. (Id. at 4.)

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The Court agrees with the Magistrate Judge that Petitioner’s Miller claim is

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unexhausted.3 Regardless of the propriety of the trial court relieving the State from a

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stipulation it made in the Arizona Court of Appeals, the fact of the matter remains that once

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it did, it proceeded to dismiss Petitioner’s original post-conviction petition for relief. (See

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Doc. 33-8, Super. Ct. 11/10/21 Order at 2–3.) In essence, the trial court reopened

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Petitioner’s original petition: Petitioner has not been forced to file “repetitive petitions.”

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See O’Sullivan, 526 U.S. at 844; Cooper v. Neven, 641 F.3d 322 (9th Cir. 2011) (“If

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[p]etitioner properly argued his claims . . . during an earlier petition . . . they are exhausted

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and can be considered.”) (emphasis added). Once the Arizona Supreme Court determines

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what is the correct route to appeal that reopening and dismissal—either through direct

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appeal or petition for review—Petitioner might then have presented the Arizona appellate

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courts with a fair opportunity to resolve his Miller claim. See 28 U.S.C. § 2254(c) (“An

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applicant shall not be deemed to have exhausted the remedies available in the courts of the

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Although the Magistrate Judge did not explicitly state this conclusion, she necessarily
found the claim unexhausted before recommending a stay. (See R. & R. at 5–6.) Further,
contrary to Petitioner’s argument, the fact that the Magistrate Judge recited the procedural
history of the case does not imply that she “essentially explained that Mr. Purcell had
satisfied the exhaustion requirement.” (Objs. at 2.)

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State . . . if he has the right under the law of the State to raise, by any available procedure,

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the question presented.”). Furthermore, if this Court were to bypass that process and

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proceed to entertain the merits of Petitioner’s Miller claim, such an action would negate

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the purpose behind the exhaustion doctrine—comity between the federal and state court

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systems. See Alfaro, 862 F.3d at 1180. This is an action the Court will not take. Although

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Petitioner’s frustration at the long, winding history of the state courts’ consideration of his

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petition for post-conviction relief is understandable, it does not support his view that he

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has already exhausted his claim.

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The Court also agrees with the Magistrate Judge’s recommendation that a stay be

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issued until Petitioner has fully exhausted his Miller claim. Federal courts have discretion

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to stay a habeas petition when it partially or fully consists of unexhausted claims. Rhines

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v. Weber, 544 U.S. 269, 277–78 (2005) (partially unexhausted claims); Mena v. Long, 813

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F.3d 907, 912 (9th Cir. 2016) (fully unexhausted claims). However, that discretion is

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“available only in limited circumstances.” Rhines, 544 U.S. at 277. Those circumstances

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exist when “the petitioner had good cause for his failure to exhaust, his unexhausted claims

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are potentially meritorious, and there is no indication that the petitioner engaged in

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intentionally dilatory litigation tactics.” Mena, 813 F.3d at 910 (quoting Rhines, 544 U.S.

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at 278).

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The Magistrate Judge did not reference Mena and Rhines in recommending a stay.

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(See R. & R. at 5–6.) However, it is clear to the Court that the requirements for entering a

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stay have been met. First, there is little question that Petitioner’s Miller claim is potentially

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meritorious or that Petitioner’s failure to exhaust does not stem from intentionally dilatory

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tactics. See Mena, 813 F.3d at 910. Indeed, neither party suggests as much. (See Objs. at 3;

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Resp. at 6.) Second, there is good cause for Petitioner’s failure to exhaust, namely the

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evolving nature of the law surrounding Petitioner’s Miller claim and the stipulation entered

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into, and subsequently withdrawn, by the State. See Mena, 813 F.3d at 910; Dixon, 847

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F.3d at 720–21 (noting that “good cause under Rhines does not require a showing of

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extraordinary circumstances” but rather “a concrete and reasonable excuse, supported by

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evidence”).

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Therefore, the Court agrees with the Magistrate Judge’s recommendation that this

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case be stayed and held in abeyance pending the resolution of Petitioner’s state court

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proceedings and overrules Petitioner’s objection.

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B.

Ineffective State Corrective Process

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When habeas petitioners fail to exhaust their claims in state court, such failure may

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be excused if (1) “there is an absence of available State corrective process” or (2)

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“circumstances exist that render such process ineffective to protect the rights of the

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applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)–(ii). The second exception applies “if the [state]

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corrective process is so clearly deficient as to render futile any effort to obtain relief.”

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Alfaro, 862 F.3d at 1180 (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam))

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(alteration in original).

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Petitioner also argues that the Magistrate Judge erred because she failed to consider

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the alternative argument made in his Reply that he is exempt from the exhaustion

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requirement under 28 U.S.C. § 2254(b)(1)(B)(ii). (Objs. at 3.) Petitioner avers that the

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Court “should conclude that allowing the state to renege on its resentencing stipulation

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neuters the Arizona postconviction process for [Petitioner]” to such a degree as to render

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the entire corrective process ineffective. (Id.) Respondents contend that Petitioner did not

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properly raise such a claim in his Reply because he only argued that “[i]f the state is

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allowed to persist in its refusal to resentence Mr. Purcell as it previously agreed to do, then

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he should not see both sets of courthouse doors closed to him.” (Resp. at 6–7 (quoting

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Reply to Limited Ans. at 5–6).) But regardless of whether this properly presented the

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argument, Respondents claim that the Magistrate Judge properly, albeit implicitly, rejected

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it in recommending a stay. (See id. at 7.) The Court agrees with Respondents.

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Petitioner has failed to demonstrate in any meaningful way how the superior court

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allowing the State to withdraw from its stipulation renders Arizona’s corrective process

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“ineffective” to protect his rights. See 28 U.S.C. § 2254(b)(1)(B)(ii). Beyond

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acknowledging that this exception to exhaustion exists, the sum of Petitioner’s argument

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amounts to blanket assertions. (See Reply to Limited Ans at 5–6; Objs. at 3.) As outlined

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above, the Arizona Supreme Court is currently determining how Petitioner may challenge

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the withdrawal from the stipulation and dismissal of his petition for post-conviction relief.

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The Arizona Supreme Court’s review belies Petitioner’s claim that his effort to obtain relief

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is futile. The Court concludes that the second exception to the exhaustion requirement does

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not apply and overrules Petitioner’s objection.

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IV.

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CONCLUSION
The Court agrees with the Magistrate Judge that Petitioner’s Miller claim is

unexhausted and that a stay is appropriate under the unique circumstances of this case.
IT IS ORDERED overruling the Objections to the Magistrate’s Report and
Recommendation (Doc. 47).
IT IS FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court (Doc. 46).
IT IS FURTHER ORDERED staying this matter until final resolution of
Petitioner’s state court proceedings.

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IT IS FURTHER ORDERED directing Respondents to file a status report

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regarding the progress of Petitioner’s state court proceedings every ninety (90) days from

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the date of this Order.

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IT IS FURTHER ORDERED that Petitioner shall file a notice with the Court
within fourteen (14) days of the conclusion of his state court proceedings.

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Dated this 16th day of August, 2022.

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