Opinion
CV-19-05618-PHX-GMS
05-24-2023
Leroy D. Cropper, Petitioner, v. Ryan Thornell,[1] et al., Respondents.
ORDER
G. Murray Snow Chief United States District Judge.
Pending before the Court is Petitioner Leroy D.1 Cropper's Unopposed Motion for Stay and Abeyance and for Authorization to Represent Petitioner in State Court. (Doc. 92.) Citing the United States Supreme Court's recent decision in Cruz v. Arizona, 598 U.S., 143 S.Ct. 650 (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 Claim 2 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.
For the reasons stated in Petitioner's motion, the Court finds that the requirements for a stay under Rhines have been satisfied. (See Doc. 92 at 7-13.) Claim 2, 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 failure to exhaust the claim; and Petitioner has not been dilatory in seeking a stay.
The Court will also grant Petitioner's request for the FPD to represent him in pursuing Claim 2 in state court. See Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009) (“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.”).
Accordingly, IT IS ORDERED that Petitioner's motion seeking a stay and abeyance of his federal habeas proceedings (Doc. 92) is GRANTED.
IT IS FURTHER ORDERED authorizing Petitioner's federal habeas counsel, the Federal Public Defender for the District of Arizona, to represent Petitioner in state postconviction proceedings to exhaust Claim 2.
IT IS FURTHER ORDERED directing Petitioner to file notice with the Court or move for other appropriate relief within 30 days of the conclusion of the state court proceedings.