by Sagi Schwartzberg

The United States Court of Appeals for the Ninth Circuit ruled that Eugene Allen Doerr satisfied the criteria set forth in Rhines v. Weber, 544 U.S. 269 (2005), for granting a stay and abeyance of his federal habeas petition to allow exhaustion of his claims in state court without running afoul of the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Background

In 1996, Doerr was convicted of kidnapping, sexual assault, and murder and was sentenced by an Arizona state court judge to death.

His conviction and sentence were affirmed by the Arizona Supreme Court in 1998. In September 2000, Doerr filed his first petition for postconviction relief, claiming that his trial counsel was ineffective during the guilt phase for failing to challenge the state’s evidence that Doerr had premeditated the murder. The Arizona trial court dismissed his petition after finding that the evidence at trial was clear and that he could not rebut or negate the evidence of premeditation. The Arizona Supreme Court denied review in March 2002.

Procedural History

In April 2002, Doerr filed a federal habeas petition in the U.S. District Court for the District of Arizona, claiming that his trial counsel provided ineffective assistance during the sentencing phase by failing to make a reasonable investigation of mitigating evidence and failing to impeach a jailhouse informant named Victor Rosales who testified at the sentencing that he and Doerr were cellmates and that Doerr told him about the murder.

The District Court denied his federal petition, ruling that his claims of IAC during the sentencing phase were procedurally defaulted because he did not raise the sentencing-phase IAC claims in his state postconviction petition regarding his guilt-phase IAC claims and Arizona Rule of Criminal Procedure 32.2(a)(3) generally precludes courts from hearing postconviction claims that were, or could have been, raised in a prior postconviction petition.

A claim is procedurally defaulted when the state court denied the claim “based on an adequate and independent state procedural rule.” Davila v. Davis, 582 U.S. 521 (2017). Additionally, a claim is procedurally defaulted when a state court would decline to consider the claim “because the prisoner ha[s] failed to meet a state procedural requirement” for presenting it. Coleman v. Thompson, 501 U.S. 722 (1991). Generally, federal courts cannot hear procedurally defaulted claims unless the petitioner can show “cause for the default and actual prejudice as a result of the alleged violation.” Id.

Doerr argued that his procedural default should be excused because his state postconviction counsel provided IAC by failing to argue that his trial counsel provided IAC during the sentencing phase. The District Court rejected his argument, ruling that IAC of state postconviction counsel “does not constitute cause to excuse a procedural default,” adding that the “fact that the [postconviction] proceeding was Petitioner’s first and only opportunity to assert claims of [IAC] at trial and on appeal does not change the analysis.” Doerr timely appealed.

While his appeal was pending, the U.S. Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), which held that ineffective assistance of state postconviction counsel is cause to excuse a procedurally defaulted claim during a postconviction proceeding of “a substantial claim” of IAC at trial if the postconviction proceeding is the first opportunity to raise that claim. Martinez effectively eliminated the reason the District Court provided for ruling that Doerr’s procedural default could not be excused. The following year, the Ninth Circuit held that for “procedurally defaulted claims for which Martinez is applicable,” a federal habeas court “should allow discovery and hold an evidentiary hearing where appropriate to determine whether there was ‘cause’ under Martinez for the state-court procedural default.” Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc).

Based on Martinez and Detrich, the Ninth Circuit remanded Doerr’s case to the District Court to reconsider Doerr’s claims in light of the new case law. It subsequently expanded the scope of the remand to permit the District Court to hear the claim that by imposing the death sentence, the Arizona Supreme Court incorrectly disregarded mitigating evidence based on the absence of a “causal nexus” between the mitigating evidence and the crime. See McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc).

Doerr’s trial counsel presented very little mitigating evidence during the sentencing phase, which was the basis of his federal IAC claim. But on remand, his federal postconviction counsel submitted “a great deal of mitigating evidence that had not been presented at sentencing,” according to the Court. The evidence included “evaluations from a new set of medical and mental health experts; school records and the complete records from the [Illinois Department of Children and Family Services]; declarations of lay witnesses, including Doerr’s sister and ex-wives; … and declarations from members of the defense team” as well as expert reports indicating that Doerr “suffers from ‘significant brain injury’” and has an intellectual disability. Additionally, the evidence included a declaration from Rosales admitting that he was never Doerr’s cellmate and a declaration from Doerr’s actual cellmate that Rosales “read all of Doerr’s police reports and paperwork so that he would be able to ‘put together a story the prosecution would want’ and get a deal in his own case.” None of this evidence had been presented to the state court during Doerr’s first postconviction petition.

Nevertheless, the District Court again denied relief on his claims of IAC by both his trial and state postconviction counsel, but it granted relief on his claim that the Arizona Supreme Court improperly disregarded mitigating evidence. He timely appealed the partial denial of his claims.

Once again, the U.S. Supreme Court changed the law while his appeal was pending. In 2022, the Supreme Court held that because “state postconviction counsel’s ineffective assistance in developing the state-court record is attributed to the prisoner … a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” Shinn v. Ramirez, 596 U.S. 366 (2022). In effect, Ramirez overturned Detrich, which permitted federal habeas petitioners to present new evidence in federal court in connection with a Martinez claim that postconviction counsel provided IAC. 

The Court stated that Ramirez “dramatically affected Doerr’s ability to litigate his ineffective assistance claim in federal court” because the new evidence presented on remand to the District Court cannot be considered by a federal court under Ramirez since it was not first presented in state court. The Court explained the problem this created for him as follows: “the evidence supporting Doerr’s ineffective assistance claim in federal court is limited to the evidence presented by the state court counsel charged with providing ineffective assistance, despite the fact that Doerr’s claim depends on the evidence that this counsel did not present.” He will be limited to that previously deficient evidence presented in state court unless he is permitted to return to state court and present the new evidence submitted to the District Court upon which his IAC claim is based.

Consequently, Doerr sought a stay and abeyance of his federal habeas petition under Rhines, which would allow him to return to state court and file a second petition for postconviction relief in which he would submit the evidence presented to the District Court. Additionally, he sought to present for the first time in state court his claim that he is not ineligible for the death penalty based on his intellectual disability under Atkins v. Virginia, 536 U.S. 304 (2002).

Analysis

The Court began its analysis by addressing the issue of whether Doerr’s sentencing-phase IAC claim at issue would be considered procedurally defaulted in Arizona courts based on Rule 32.2(a)(3), resulting in state courts refusing to hear his claim, which in turn would mean that a Rhines stay and abeyance order is unavailable. The State argued that Doerr’s claim was exhausted for purposes of Rhines because he failed to bring it in his first postconviction petition, so the claim is both procedurally barred and “technically exhausted” in state court. See Rule 32.2(a)(3); Coleman. However, the Court rejected the State’s conclusion that Arizona courts would decline to hear Doerr’s second state postconviction petition based on Rule 32.2(a)(3). Instead, the Court determined that it is “not clear” they would do so because the specific issue in this case has never been decided by an Arizona court. See Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) (holding that the rule of procedural default applies only when “it is clear that the state court would hold the claim procedurally barred”) (quoting Harris v. Reed, 489 U.S. 255 (1989)). 

In fact, the Court noted that two Arizona Supreme Court cases suggest that it might conclude that Doerr’s second postconviction petition would not be barred based on his failure to raise the claim at issue in his first petition. In State v. Diaz, 340 P.3d 1069 (Ariz. 2014), the state Supreme Court excused the postconviction petitioner’s noncompliance with Rule 32.2(a)(3) where his two previous attorneys had filed notices of intent to submit petitions but failed to timely file such petitions. Diaz’s third petition was summarily denied by the trial court as barred by Rule 32.2(a)(3) because the IAC claim in that petition could have been raised in the previous two petitions had they been timely filed. The Arizona Supreme Court reversed. It excused his noncompliance with Rule 32.2(a)(3), holding that he had been “deprived of th[e] opportunity” to assert his IAC claim “through no fault of his own.”

State v. Anderson, 547 P.3d 345 (Ariz. 2024), expanded Diaz by excusing noncompliance with Rule 32.2(a)(3) for a petitioner who filed a successive state petition for postconviction relief, claiming that trial counsel provided IAC by providing incorrect information regarding parole eligibility. The intermediate state appellate court ruled that his claim was precluded by Rule 32.2(a)(3), but the state Supreme Court reversed, ruling that, like the petitioner in Diaz, the petitioner’s noncompliance was due to no fault of his.

The Court explained that Diaz and Anderson stand for the proposition that, under certain circumstances where the petitioner is “blameless” for the noncompliance, “Arizona courts will hold that deficient performance by state postconviction counsel is sufficient to avoid the procedural bar of Rule 32.2(a)(3).” Doerr was similarly blameless for his noncompliance with Rule 32.2(a)(3), so Arizona courts may likewise excuse him, the Court reasoned. Thus, the Court concluded that given the “existence of Diaz and Anderson, we cannot confidently predict what an Arizona court will do” and that “we should ask rather than tell the state court how it will rule on a question of state law.” See Herb v. Pitcairn, 324 U.S. 117 (1945).   

The Court observed that to obtain a stay and abeyance order under Rhines, a federal petitioner must show: (1) there is “good cause for his failure” to present the claim in state court, (2) the claim is “potentially meritorious,” and (3) “there is no indication that the petitioner engaged in intentionally dilatory tactics.” The Court determined that Doerr met all three criteria for his postconviction petition claim of IAC at sentencing.

As to the first factor, the Ninth Circuit has specifically held that “ignorance or inadvertence” by the petitioner’s postconviction counsel constitutes “good cause” for a stay and abeyance under Rhines. Dixon v. Baker, 847 F.3d 714 (9th Cir. 2017). The Court stated that Doerr’s failure to present his IAC at sentencing claim was due to his original state postconviction counsel’s ignorance or inadvertence, and that “is sufficient to constitute good cause under Rhines.”

The second factor requires that the claim be “potentially meritorious,” which means that the claim is not “plainly meritless.” Rhines. The Court explained that Doerr satisfied this factor because the District Court issued a certificate of appealability (“COA”) after denying his claim, and the COA standard is more demanding than the one under Rhines. See Miller-El v. Cockrell, 537 U.S. 322 (2003).

Finally, the Court concluded that “Doerr has not been intentionally dilatory in seeking a stay and abeyance to present his” IAC claim in state court. He initially sought a stay from the District Court in 2004 and has diligently continued to seek its issuance. Thus, the Court held that Doerr satisfied Rhines’ requirements for a stay and abeyance of his federal habeas petition for both his IAC claim and his Atkins claim.

Conclusion

Accordingly, the Court granted Doerr’s motion and remanded the case to the District Court with instructions to stay and abey consideration of his habeas petition in order to allow him to present his sentencing-phase IAC and Atkins claims in state court. Source: Doerr v. Shinn, 127 F.4th 1162 (9th Cir. 2025). 

Editor’s note: Anyone with an interest in the issue of stay and abeyance under Rhines is encouraged to read the Court’s full opinion.   

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