Martinez v. Thornell

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gilbert Martinez, No. CV-20-00517-PHX-DJH 10 Petitioner, ORDER v. DEATH PENALTY CASE Ryan Thornell, et al., 13 Respondents.

15 Gilbert Martinez is an Arizona death row inmate seeking federal habeas relief.

16 Before the Court is his unopposed Motion for Stay and Abeyance (Doc. 76) and his Motion for Authorization to Represent Petitioner in State Court (Doc. 72). Citing the United States Supreme Court’s recent decision in Cruz v. Arizona, 598 U.S. 17, 20–21 (2023), Petitioner seeks an order staying and holding in abeyance the current federal habeas proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he may present unexhausted Claims 3(D) and 4 of his federal habeas petition in state court. Petitioner also asks the Court to authorize the Federal Public Defender for the District of Arizona (“FPD”) to represent him in the related state court proceedings. Respondents take no position on the latter request. (See Doc. 72 at 1.)

25 For the reasons stated in Petitioner’s motion, the Court finds that the requirements for a stay under Rhines have been satisfied. (See Doc. 76 at 6–12.) Claim 4, alleging a violation of Petitioner’s right to a parole ineligibility instruction under Simmons v. South Carolina, 512 U.S. 154 (1994), is not plainly meritless; good cause exists for Petitioner’s 2|| failure to exhaust the claim; and Petitioner has not been dilatory in seeking a stay.

3 The Court will also grant Petitioner’s request for the FPD to represent him in pursuing Claim 4 in state court. See Harbison vy. Bell, 556 U.S. 180, 190 n.7 (2009) 5|| (“Pursuant to [18 U.S.C.] § 3599(e)’s provision that counsel may represent her client in || ‘other appropriate motions and procedures,’ a district court may determine on a case-by- case basis that it is appropriate for federal counsel to exhaust a claim in the course of her || federal habeas representation.’’).

9 Accordingly, 10 IT IS ORDERED that Petitioner’s motion seeking a stay and abeyance of federal || habeas proceedings (Doc. 76) is GRANTED.

12 IT IS FURTHER ORDERED Petitioner’s Motion for Authorization for Habeas || Counsel to Represent Petitioner in State Court for purposes of presenting his unexhausted 14]| claims (Doc. 72) is GRANTED.

15 IT IS FURTHER ORDERED directing Petitioner to file notice with the Court or 16|| move for other appropriate relief within 30 days of the conclusion of the state court || proceedings.

18 Dated this 11th day of December, 2023.

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