Pandeli v. Ryan et al

Filing 117

ORDER granting 114 Motion to Stay. This action is stayed and held in abeyance pending exhaustion of Claim1 of Pandeli's habeas petition. Pandeli's request for federal habeas counsel to represent him in state court is granted and denied in part as discussed herein. See Order for further details. Signed by Judge John J Tuchi on 11/10/22. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darrel Peter Pandeli,

No. CV-17-01657-PHX-JJT

Petitioner,

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v.

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David Shinn, et al.,

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ORDER
DEATH PENALTY CASE

Respondents.

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Darrel Pandeli is an Arizona death row inmate seeking federal habeas relief. Before

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the Court is his motion for stay and abeyance. (Doc. 114; see Docs. 109, 110.) He asks the

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Court to stay this habeas proceeding and hold it in abeyance while he returns to state court

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to exhaust claims alleging ineffective assistance of trial counsel at resentencing and

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ineffective assistance of post-conviction counsel—Claims 1 and 4 of his habeas petition.

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(Id.) He also asks the Court to appoint his federal habeas counsel to represent him on his

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return to state court. (Id. at 16–17.) Respondents oppose a stay. (Docs. 111, 115.)

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I.

BACKGROUND

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The nude body of Holly Iler was found in a Phoenix alley on the morning of

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September 24, 1993. She had been beaten, her throat had been slashed, and her nipples had

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been removed. Pandeli confessed to the murder. He also admitted that he had previously

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killed another woman, Teresa Humphreys, whose body was found on a sidewalk in Phoenix

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in January 1992. She had been stabbed several times in the chest and back, her throat had

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been slashed, and she suffered defensive wounds to her hands.

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In 1996 Pandeli was convicted of second-degree murder for killing Humphreys and
sentenced to 20 years in prison. He was convicted of first-degree murder and sentenced to
death in 1998 for the Iler murder. The Arizona Supreme Court affirmed the conviction and
death sentence. State v. Pandeli (Pandeli I), 200 Ariz. 365, 382–83, 26 P.3d 1136, 1153–
54 (2001). In 2002, the United States Supreme Court remanded the case for further
consideration in light of Ring v. Arizona, 536 U.S. 584 (2002), which held that a jury must
make the factual findings that render a defendant eligible for the death penalty. Pandeli
v. Arizona (Pandeli II), 536 U.S. 953 (2002) (mem.). The Arizona Supreme Court
vacated Pandeli’s death sentence and remanded the case to the trial court for a new
sentencing hearing. State v. Pandeli (Pandeli III), 204 Ariz. 569, 572, 65 P.3d 950, 953
(2003).
Resentencing began in February 2006. The State sought to prove two aggravating

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circumstances: that Pandeli had been “previously convicted of a serious offense” and that he

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committed the murder in an “especially heinous . . . or depraved manner.” The jury found both

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aggravating circumstances and rendered a verdict of death. The Arizona Supreme Court
affirmed. State v. Pandeli, 215 Ariz. 514, 161 P.3d 557 (2007) (Pandeli IV).

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Pandeli pursued postconviction relief (“PCR”) in state court. The trial court, after

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an evidentiary hearing, granted relief on several of Pandeli’s ineffective assistance of

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counsel claims, including a claim of ineffective presentation of mitigating evidence. The
Arizona Supreme Court granted the State’s petition for review and reversed. State v.
Pandeli (Pandeli V), 242 Ariz. 175, 394 P.3d 2 (2017).
Pandeli then sought habeas relief in this court, filing his petition in April 2018. (Doc.
29.) Briefing on the petition was completed in January 2019. (Doc. 77.) In March 2019,
Pandeli filed his notice of a request for evidentiary development. Briefing was completed
on that motion in September 2019. (Doc. 109.)
On August 23, 2022, Pandeli filed a motion seeking leave to file a motion to stay and
abey, which the Court granted. (Docs. 109, 113.) Pandeli then filed the pending motion. (Doc.

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114.) If granted, a stay would allow him to return to state court to present “new claims and

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facts supporting his claims of ineffective assistance of counsel.” (Id. at 22.)

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II.

APPLICABLE LAW

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A.

Exhaustion and Procedural Default

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Federal courts may not grant a writ of habeas corpus unless “the applicant has

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exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

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The exhaustion requirement is “grounded in principles of comity” as it gives the States “the

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first opportunity to address and correct alleged violations of state prisoner’s federal rights.”

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Coleman v. Thompson, 501 U.S. 722, 731 (1991). To exhaust a claim, a petitioner must

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fairly present it to the highest available state court and give that court the opportunity to

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resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995).

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In Coleman, the Supreme Court held that a state prisoner who fails to comply with

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state-law procedural requirements in presenting his claims is barred by the adequate and

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independent state ground doctrine from obtaining a writ of habeas corpus in federal court.

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Coleman, 501 U.S. at 731–32; see Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014)

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(“An unexhausted claim will be procedurally defaulted, if state procedural rules would now

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bar the petitioner from bringing the claim in state court.”).

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A default may be excused only if “a constitutional violation has probably resulted

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in the conviction of one who is actually innocent,” or if the petitioner demonstrates cause

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for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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To demonstrate cause, the petitioner must establish that “some objective factor external to

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the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at

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488. “[T]o establish prejudice, [a petitioner] must show not merely a substantial federal

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claim, such that ‘the errors . . . at trial created a possibility of prejudice,’ but rather that the

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constitutional violation ‘worked to his actual and substantial disadvantage.’” Shinn v.

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Ramirez, 142 S. Ct. 1718, 1734–35 (2022) (quoting United States v. Frady, 456 U.S. 152,

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170 (1982)).

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In Martinez v. Ryan, the Supreme Court held for the first time that ineffective

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assistance of PCR counsel may serve as cause to excuse the default of a claim of ineffective

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assistance of trial counsel. 566 U.S. 1, 17 (2012); see also Trevino v. Thaler, 569 U.S. 413,

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423 (2013).

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B.

Stay and Abeyance

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A district court is authorized to stay a petition in “limited circumstances” to allow a

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petitioner to present unexhausted claims to the state court without losing the right to federal

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habeas review pursuant to the relevant one-year statute of limitations.1 Rhines v. Weber,

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544 U.S. 269, 273–77 (2005). Under Rhines, “a district court must stay a mixed petition

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only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state court;

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(2) the unexhausted claims are potentially meritorious; and (3) there is no indication that

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the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540

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F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278).

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The Rhines “good cause” standard does not require “extraordinary circumstances.”

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Id. at 1024 (citing Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005)). However, courts

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“must interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of the

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Supreme Court’s instruction in Rhines that the district court should only stay mixed

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petitions in ‘limited circumstances.’” Id. (citing Jackson, 425 F.3d at 661). Courts must

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also “be mindful that AEDPA aims to encourage the finality of sentences and to encourage

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petitioners to exhaust their claims in state court before filing in federal court.” Id. (citing

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Rhines, 544 U.S. at 276–77).

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III.

As Respondents acknowledge, Pandeli’s petition is mixed, containing both exhausted

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DISCUSSION

and unexhausted claims. (See Doc. 111 at 5.) Therefore, the Rhines analysis applies.

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The Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a
one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1).
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A.

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Pandeli makes two arguments in support of his contention that good cause exists for

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a Rhines stay. First, he asserts that Ramirez “upended the settled expectations and course

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of dealing between the parties.” (Doc. 109 at 2.) In the wake of Martinez, the Ninth Circuit

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held that federal habeas courts may take new evidence to determine whether a defaulted

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claim of ineffective assistance of trial counsel was substantial. Dickens, 740 F.3d at 1321.

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In Dickens, the court explained that 28 U.S.C. § 2254(e)(2) did not bar the district court

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from holding an evidentiary hearing, because a petitioner seeking to show cause based on

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ineffective post-conviction counsel is “not asserting a ‘claim’ for relief as that term is used

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in § 2254(e)(2).”2 Id. The Ninth Circuit later expanded Dickens, holding that new evidence

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could also be used to support the merits of a claim. Jones v. Shinn, 943 F.3d 1211 (9th Cir.

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2021), overruled by Ramirez, 142 S. Ct. 1718.

Good cause

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In Ramirez, however, the Supreme Court held that in adjudicating a Martinez claim,

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“a federal habeas court may not conduct an evidentiary hearing or otherwise consider

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evidence beyond the state-court record based on ineffective assistance of state post-

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conviction counsel” unless the petitioner satisfies the stringent requirements of 28 U.S.C.

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§ 2254(e)(2). 142 S. Ct. at 1734. Until Ramirez, in other words, petitioners like Pandeli

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had the opportunity to present new evidence in federal court pursuant to Martinez.

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Pandeli argues that with the path to presenting new evidence in federal court cut off

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by Ramirez, it is imperative that he be allowed an opportunity to offer the evidence in state

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court. He also contends that in Ramirez, “the State induced the Supreme Court to adopt an

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interpretation of 28 U.S.C. § 2254(e)(2) that upended the settled expectations of the parties.

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Section 2254(e)(2) provides that if a petitioner failed to develop the factual basis of a
claim in state court, he is not entitled to a federal evidentiary hearing unless the claim
“relies on a new rule of constitutional law . . . or a factual predicate that could not have
been previously discovered through the exercise of due diligence . . . and the facts
underlying the claim would be sufficient to establish by clear and convincing evidence that
but for constitutional error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.”

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. . .” (Doc. 109 at 3.) According to Pandeli, the State represented “that if the petitioner had

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a ‘good claim’ then he/she could seek a Rhines stay to go back to state court to raise that

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issue in a second state PCR petition,” thereby reconciling Martinez and Ramirez by

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recognizing a state forum for the presentation of new evidence, whereas Respondents had

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previously argued that claims not raised in state court were technically exhausted. As

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Pandeli notes, Respondents fail to address this argument. (Doc 116 at 2; see Doc. 111.)

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Pandeli also argues that PCR counsel’s ineffective performance is good cause for a

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stay. (Doc. 109 at 3–4.) The Ninth Circuit has held that the ineffective assistance of post-

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conviction counsel can constitute good cause to obtain a stay for purposes of exhausting a

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claim in state court. Blake v. Baker, 745 F.3d 977, 982–83 (9th Cir. 2014). “[G]ood cause

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turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient

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evidence, to justify [the failure to exhaust].” Id. The good cause standard under Rhines

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“cannot be any more demanding than a showing of cause under Martinez to excuse state

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procedural default.” Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017). A district court is

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required to consider whether post-conviction counsel’s alleged ineffectiveness provided a

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reasonable excuse, supported by sufficient evidence, to justify petitioner’s failure to

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exhaust claims. Bolin v. Baker, 994 F.3d 1154 (9th Cir. 2021).

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Pandeli bears the burden of supporting his good cause argument with more than

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“bald assertion[s].” Blake, 745 F.3d at 982. The petitioner in Blake, for example, argued

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that he did not exhaust his ineffective assistance of trial counsel claim because state post-

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conviction counsel failed to discover evidence that the petitioner suffered extreme abuse

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as a child, as well as organic brain damage and psychological disorders. Id. at 982–83. He

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supported this argument with evidence of his abusive upbringing and history of mental

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illness. In light of this showing, the Ninth Circuit found that the district court abused its

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discretion in denying a stay and remanded the case. Id. at 983–84.

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Pandeli similarly has carried his burden. In his motion for a stay and in his habeas

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petition, Pandeli points to specific deficiencies in PCR counsel’s performance. (See Doc.

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114 at 3–15.) He alleges that PCR counsel failed to present first-hand evidence of Pandeli’s

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traumatic upbringing; failed to present a complete picture of Pandeli’s PTSD; and failed to

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secure neuroimaging as evidence of Pandeli’s brain damage. These allegations are

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supported by new evidence, including declarations from lay witnesses detailing Pandeli’s

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abusive background, declarations from members of Pandeli’s defense and PCR teams, and

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expert reports. Accordingly, Pandeli has done more than make a bare allegation of

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ineffective assistance by PCR counsel. See Letner v. Davis, No. 118CV01459NONESAB,

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2020 WL 2792980, at *4 (E.D. Cal. May 29, 2020), report and recommendation

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adopted, 2020 WL 3893691 (E.D. Cal. July 10, 2020) (collecting cases); Ervine v. Warden,

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San Quentin State Prison, No. 2:15-CV-1916 TLN DB, 2018 WL 372754, at *3 (E.D. Cal.

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Jan. 10, 2018), report and recommendation adopted, 2018 WL 1173959 (E.D. Cal. Mar.

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6, 2018); Blake, 745 F.3d at 983–84.

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Respondents contend that good cause is absent because Pandeli had no basis for his

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delay in seeking a stay. (Doc. 111 at 5–6.) This argument is unpersuasive. As described

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above, until the decision in Ramirez, Martinez provided an opportunity for habeas

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petitioners to present, with respect to defaulted claims, new evidence in federal court. It

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was not necessary, therefore, to seek a Rhines stay with respect to an unexhausted claim of

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ineffective assistance of trial counsel.

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The district court in Guevara-Pontifes v. Baker, No. 3:20-cv-00652-ART-CSD,

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2022 WL 4448259 (D. Nev. September 23, 2022), addressed similar arguments. There the

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petitioner sought a stay to exhaust a claim of ineffective assistance of trial counsel, arguing,

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as Pandeli does here, that postconviction counsel’s ineffectiveness in failing to raise the

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claim constituted good cause under Rhines. Id. at *3. The court held that Ramirez did not

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“concern the good cause requirements for a Rhines stay” and did not “foreclose a petitioner

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from demonstrating good cause for a stay based on post-conviction counsel’s failure to

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raise an unexhausted claim in state court.” Id. at *4. The court also rejected the argument

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that a stay would be futile based on Nevada’s procedural default bars. Id. at *4–5 (citing

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Brown v. McDaniel, 130 Nev. 565, 331 P.3d 867 (Nev. 2014)). The court explained that if

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the stay were granted the petitioner “can argue to the Nevada Supreme Court, that in light

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of the Supreme Court’s decision in Ramirez, it should overrule Brown and permit the use

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of the principles set forth in Martinez for purposes of overcoming state procedural bars.”

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Id. at *5. The court granted the Rhines stay, finding that the allegation of ineffective

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assistance of postconviction counsel constituted “good cause.”

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The Court agrees with the analysis in Guevara-Pontifes. The alleged ineffective

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assistance of PCR counsel constitutes good cause under Rhines. The propriety of a stay is

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magnified by the decision in Ramirez and its limitations on the presentation of new

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evidence in federal habeas court.
B.

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Potentially meritorious

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Claim 1 consists of the several challenges to the performance of resentencing counsel.

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Pandeli specifically alleges that counsel failed to effectively investigate, develop, and present

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various types of mitigating evidence; failed to challenge the State’s evidence, including

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failing to cross-examine the State’s mental health expert, Dr. Bayless, and Chris Pandeli,

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Pandeli’s brother, and to prepare for other witnesses; failed to challenge the (F)(2)

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aggravating factor and the State’s allegation of relishing in support of the (F)(6) factor; failed

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to effectively address the State’s rebuttal evidence; failed to file a Miranda motion; failed to

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adequately voir dire the jurors; and failed to address a number of jury instruction issues.

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These allegations meet the potentially meritorious standard.3

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A claim is potentially meritorious unless “it is perfectly clear that the [petitioner]

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does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th

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Cir. 2005); see Dixon, 847 F.3d at 722–23 (finding claim met second prong of Rhines test

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because it was not “plainly meritless”). Having reviewed the claims and the supporting

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Claim 4, by contrast, does not satisfy the “potentially meritorious” requirement because
ineffective assistance of PCR counsel is not a colorable federal claim. There is no
independent constitutional right to an attorney in PCR proceedings, so “a petitioner cannot
claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501
U.S. at 752; see Ramirez, 142 S. Ct. at 1735; 28 U.S.C. § 2254(i). Martinez modified
Coleman but did not establish an independent constitutional right to effective PCR counsel.
However, because Pandeli has demonstrated that at least one of his claims is not plainly
meritless, he is entitled to a stay under Rhines. Dixon, 847 F.3d at 722.
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evidence, the Court concludes that the allegations in Claim 1 are “colorable” and not

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“hopeless.” Cruz v. Mitchell, No. 13-cv-2792-JST, 2015 WL 78779 at *3, (N.D. Cal. Jan.

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5, 2015) (finding unexhausted claims potentially meritorious where they were not “vague,

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conclusory or patently frivolous” but rather were “well-supported by specific averments

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and numerous exhibits” and by legal authority).

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Pandeli’s claim of ineffective assistance of counsel at resentencing is sufficiently

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supported by argument and evidence. Although it remains unclear at this stage whether the

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claim eventually will warrant federal habeas relief, Pandeli has satisfied the less

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demanding standard required to obtain a stay under Rhines. See Dixon, 847 F.3d at 723

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(explaining that a habeas petitioner’s burden to show a claim is not “plainly meritless” does

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not require him to “conclusively establish” that his claim has merit).

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The second Rhines criterion is satisfied.

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C.

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Respondents contend that “the record suggests that Pandeli may be engaging in

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dilatory tactics.” (Doc. 111 at 8.) They cite the length of time (four years) between the

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filing of the habeas petition and answer and Pandeli’s request for a stay and the three

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months between the Ramirez decision and the filing of the stay motion. (Id. at 8–9.)

Dilatory litigation tactics

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These circumstances are not indicative of intentional delay. As already discussed,

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Ramirez changed the law so that Martinez no longer afforded petitioners seeking to excuse

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the default of ineffective assistance claims an opportunity to present new evidence in

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federal court. Pandeli cannot be faulted for relying on Martinez and its progeny, including

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Dickens, as he did in briefing Claim 1 (see Doc. 29 at 61–62), instead of moving for a stay.
The third Rhines criterion is satisfied.

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III.

APPOINTMENT OF COUNSEL

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Pandeli has asked the Court to authorize his federal habeas counsel to represent him

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

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

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

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

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habeas petitioners, and subsection (e) governs the scope of appointed counsel’s duties.” Id.

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at 185. The Court noted, however, that appointed counsel is not expected to provide each of

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the services enumerated in section (e) for every client. Rather, “counsel’s representation

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includes only those judicial proceedings transpiring ‘subsequent’ to her appointment.” Id. at

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188. “Moreover, subsection (a)(2) provides for counsel only when a state petitioner is unable

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to obtain adequate representation.” Id. at 189.

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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 proceedings

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are also “available post-conviction process.” Id. The Court explained that § 3599(e) does

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not apply to those proceedings because they are not “properly understood as a ‘subsequent

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stage’ of judicial proceedings but rather as the commencement of new judicial

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proceedings.” Id. at 189. As to state post-conviction proceedings, the Court noted, “State

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habeas is not a stage ‘subsequent’ to federal habeas. . . . That state postconviction litigation

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sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust

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does not change the order of proceedings contemplated by the statute.” Id. at 189–90; see

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Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011); Lugo v. Sec’y, Florida Dep’t of Corr., 750

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F.3d 1198, 1213 (11th Cir. 2014) (explaining “a state prisoner is not entitled, as a matter

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

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his state postconviction remedies. . . .”).

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In Harbison, the Court also noted, however, that “a district court may determine on

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a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course

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of her federal habeas representation.” 556 U.S. at 190 n.7. In determining whether

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appointment of federal counsel was appropriate, courts have consistently taken into

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account the petitioner’s access to state-appointed counsel. See, e.g., Johnson v. Kerestes,

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No. CIV.A. 13-3197, 2015 WL 2069216, at *8 (E.D. Pa. May 4, 2015) (“[I]t would not be

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appropriate for this Court to exercise its discretion to authorize the [Federal Community

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Defender Organization] to pursue Petitioner’s state proceedings within the scope of its

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federally funded duties. Petitioner is entitled, under state law, to counsel who would assist

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in pursuing his [post-conviction] petition and appeal and it is not ‘appropriate’ for this

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Court to direct the FCDO to litigate this action in place of a state-appointed

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counsel.”); Pickens v. Shoop, No. 1:19-CV-558, 2022 WL 2802411, at *4 (S.D. Ohio July

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18, 2022) (“[T]he Sixth Circuit has applied Harbison to hold that § 3599 applies to state

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proceedings only when adequate representation is not otherwise available.”) (citing Irick,

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636 F.3d at 291); Hill v. Mitchell, No. 98–452, 2009 WL 2898812, at *4–6 (S.D. Ohio

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Sept. 4, 2009).

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Based on the above, the Court finds that is appropriate to appoint federal counsel to

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represent Pandeli in state court only if state-appointed counsel is unavailable. See Irick,

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636 F.3d at 291. To that end the Court will appoint federal counsel for the purpose of filing

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a notice of PCR. Counsel may also seek appointment in state court. If that request is denied,

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and state-appointed counsel is unavailable, the Court will authorize appointment of federal

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counsel.

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IV.

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CONCLUSION
For the reasons stated above, Pandeli’s motion satisfies the criteria for a stay under

Rhines. Accordingly,
IT IS HEREBY ORDERED granting Pandeli’s Motion for a Stay and
Abeyance (Doc. 114).
IT IS FURTHER ORDERED that this action is stayed and held in abeyance
pending exhaustion of Claim1 of Pandeli’s habeas petition.

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IT IS FURTHER ORDERED granting in part and denying in part Pandeli’s

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request for federal habeas counsel to represent him in state court. Counsel are appointed

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for the purpose of filing a notice of PCR and to request appointment in state court. Within

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ten days of the date of the state court’s order addressing the request for counsel, counsel
shall notify the Court if their request for appointment was granted or if other stateappointed counsel will be provided.
Dated this 10th day of November, 2022.

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Honorable John J. Tuchi
United States District Judge

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