Cromwell v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Louis Cromwell,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-23-00783-PHX-DWL
ORDER
DEATH PENALTY CASE
Pending before the Court is Petitioner Robert Louis Cromwell’s motion for stay
under Rhines v. Weber, 544 U.S. 269 (2005), and his request for authorization for federal
habeas counsel to represent him in the Arizona courts for the purpose of exhausting four
claims asserted in his habeas petition. (Doc. 64.)1 Also pending is Cromwell’s motion to
strike. (Doc. 65.) The motions are fully briefed. (Docs. 69, 70, 73, 80.)2 For the reasons
that follow, both motions are denied.
I. Background
Cromwell is an Arizona death row inmate seeking federal habeas relief in this Court.
On February 19, 2003, a Maricopa County jury convicted Cromwell of one count of first-
degree murder and one count of sexual assault in the death of 11-year-old Stephanie Shortt
(“Stephanie”). State v. Cromwell, 119 P.3d 448 (Ariz. 2005). He was also convicted of
1 “Doc.” refers to numbered documents in this Court’s electronic case docket; page
citations are to page numbers generated by the Court’s electronic filing system.
2 Cromwell has also filed a motion to amend (Doc. 76), which will be addressed in
due course in a separate order.
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two counts of aggravated assault, one against Ella Speaks, Stephanie’s mother, the other
against Ella’s friend, Kim Jensen. Id. at 449.
The jury also found both of the aggravating factors alleged by the State: that
Cromwell murdered Stephanie in an especially cruel, heinous, or depraved manner, and
that Stephanie was under the age of 15 years. Id. at 458. The jury determined that
Cromwell should be sentenced to death. (IOR 253.)3 The trial court then imposed a death
sentence for the murder and prison sentences for the noncapital counts. Cromwell, 119
P.3d at 449.
In 2005, the Arizona Supreme Court affirmed Cromwell’s convictions and death
sentence on direct appeal. Id. at 460. The trial court subsequently denied post-conviction
relief (“PCR”) (IOR at 803), and on April 5, 2023, the Arizona Supreme Court summarily
denied review of all but a single PCR claim and, after granting review, denied relief on that
claim. (PR 33.)
On May 9, 2023, Cromwell initiated federal habeas proceedings. (Doc. 1.) On
April 18, 2024, Cromwell filed a first amended petition (“Amended Petition”), raising 13
claims and numerous subclaims. (Doc. 38.) Relevant to the motion to stay, Cromwell
alleges he received ineffective assistance of trial counsel because counsel: (1) abandoned
him, Claim 1-1 (id. at 43-45); (2) simultaneously represented victim Kim Jensen, Claim 1-
6 (id. at 95-96); (3) failed to withdraw based on the simultaneous representation, Claim 1-
7 (id. at 96), and (4) failed to request a Simmons4 instruction and argue to the jury that if
Cromwell were sentenced to natural life, he could never be released, Claim 2-10 (id. at
3 “IOR” refers to the indexed documents from Maricopa County Superior Court Case
No. CR-2001-095438. “PR” refers to the indexed documents from the Arizona Supreme
Court’s review of post-conviction proceedings in CR-22-0068-PC.
4 In Simmons v. South Carolina, 512 U.S. 154 (1994), the Supreme Court held that
“where the defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury be informed
that the defendant is parole ineligible.” Id. at 156. See also Lynch v. Arizona, 578 U.S.
613 (2016) (holding that Simmons applies to Arizona capital cases). In Arizona, parole is
available only for juveniles and individuals who committed a felony before January 1,
1994, categories that do not include Cromwell.
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148-49).
Respondents allege in their Answer that Claims 1-1, 1-6, and 1-7 are technically
exhausted and procedurally defaulted as well as meritless. (Doc. 51 at 13, 15, 36.) They
further allege that Claim 2-10 is exhausted and meritless. (Id. at 84-87.)
II. Discussion
A. Motion to Strike
The Court sua sponte directed Respondents to file a surreply “supporting their
affirmative allegations of procedural defenses and addressing arguments made by
Petitioner regarding the availability of state remedies, cause and prejudice, fundamental
miscarriage of justice, or equitable tolling.” (Doc. 59 at 1.) Respondents were advised that
“[t]he Surreply shall not be used to address the merits of Petitioner’s claims except to the
extent the merits of a claim are implicated in Petitioner’s response to Respondents’
affirmative defenses.” (Id.) Later, the Court denied Cromwell’s motion for
reconsideration. (Doc. 62 at 5-6.)
In the Amended Petition, Cromwell includes a statement of exhaustion, asserting
that several of his claims were raised in his PCR Petition. (See e.g., Doc. 38 at 104 [Claim
1-14].) In their Answer, Respondents contend that although Cromwell attempted to
incorporate his entire PCR Petition by reference into his petition for review (“PR”) to the
Arizona Supreme Court, this approach was impermissible and did not serve to fairly
present the claims—and, thus, several claims raised in the PCR Petition, but not in the PR,
are technically exhausted and procedurally defaulted. (See e.g., Doc. 51 at 13, 47 & n.13.)
In his Reply, Cromwell disagrees with this argument, asserting all of the claims raised in
the PCR Petition were fairly presented to the Arizona Supreme Court because they were
included in the appendix to the PR. (Doc. 61 at 10.) In Section II of the Surreply,
Respondents attempt to rebut this argument and provide additional legal citations in
support of their position. (Doc. 63 at 3-7.)
Cromwell now moves the Court to strike Section II of Respondents’ Surreply,
arguing that Respondents’ “lengthy new argument on fair presentation” exceeds the scope
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of a permissible surreply. (Doc. 65 at 3.) Cromwell also contends that Section II violates
the Court’s order directing Respondents not to raise new affirmative defenses in the
Surreply and allowing them only to respond to his arguments on cause and prejudice or
actual innocence. (Id.)
As previously explained, a surreply in this circumstance is “more appropriately
considered a reply in support of a motion to dismiss the claims as procedurally barred.”
(Doc. 62 at 3.) As such, Respondents’ arguments in the Surreply regarding fair
presentation (or the absence thereof) do not exceed the proper scope of the Surreply. (Doc.
59 at 1 [“Respondents shall file a Surreply supporting their affirmative allegations of
procedural defenses . . . .”].) Nor did Respondents impermissibly raise new affirmative
defenses or address the merits of Cromwell’s claims in Section II of the Surreply. Although
Cromwell contends the Court ordered Respondents to only respond to his arguments on
cause and prejudice or actual innocence, this is incorrect. That language was taken from
the order denying Cromwell’s motion for reconsideration. (Doc. 62 at 5-6.) The order
directing Respondents to file a Surreply, as noted above, specifically authorized them to
support their affirmative allegations of procedural defenses. (Doc. 59 at 1.) The challenged
arguments in Section II of the Surreply fall into this permissible category of argument.
B. Stay and Abeyance
Federal courts may not grant a writ of habeas corpus unless “the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
The exhaustion requirement is “grounded in principles of comity” as it gives the states “the
first opportunity to address and correct alleged violations of state prisoner’s federal rights.”
Coleman v. Thompson, 501 U.S. 722, 731 (1991).
A Rhines stay allows a habeas petitioner who presents a mixed petition containing
both exhausted and unexhausted claims “to exhaust claims in state court that had not
previously been presented there, and to do so without dismissing their federal habeas
petition . . . and without running afoul of the one-year statute of limitations established by”
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Doerr v. Shinn,
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176 F.4th 1117, 1125 (9th Cir. 2026), pet. for rehearing en banc filed (9th Cir. May 18,
2026) (Nos. 09-99026, 10-99007, 20-99002).
Under Rhines, “a district court must stay a mixed petition only if: (1) the petitioner
has ‘good cause’ for his failure to exhaust his claims in state court; (2) the unexhausted
claims are potentially meritorious; and (3) there is no indication that the petitioners
intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019,
1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278).
The Rhines “good cause” standard does not require “extraordinary circumstances.”
Id. at 1024 (citing Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). However, courts
“must interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of the
Supreme Court’s instruction in Rhines that the district court should only stay mixed
petitions in ‘limited circumstances.’” Id. (citing Jackson, 425 F.3d at 661). Courts must
also “be mindful that AEDPA aims to encourage the finality of sentences and to encourage
petitioners to exhaust their claims in state court before filing in federal court.” Id. (citing
Rhines, 544 U.S. at 276-77).
C. Exhaustion
Before applying the Rhines criteria to Cromwell’s claims, the Court must first
determine if he has presented a mixed petition by including unexhausted claims in his
request for habeas relief.
A claim is exhausted if (1) the petitioner has fairly presented the federal claim to the
highest state court with jurisdiction to consider it; or (2) no state remedy remains available
for the claim. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). The latter form of
exhaustion is referred to as “technical exhaustion.” Coleman, 501 U.S. at 732 (“A habeas
petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”);
Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (observing that if state court where
petitioner would be required to present the claims would find the claims procedurally
barred, petitioner has technically exhausted the claims through procedural default);
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Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (“An unexhausted claim will be
procedurally defaulted, if state procedural rules would now bar the petitioner from bringing
the claim in state court.”).
Therefore, in the present case, for the claims that were not fairly presented in state
court, the Court must first determine whether Cromwell has state remedies currently
available to him. Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1988). If no remedies are
available, Cromwell’s claims are “technically” exhausted and procedurally defaulted.
Coleman, 501 U.S. at 732, 735 n.1.
1. Claims 1-1, 1-6, and 1-7
Respondents argue that Claims 1-1, 1-6, and 1-7 are technically exhausted and
procedurally defaulted because Cromwell did not raise them in his first PCR proceeding
and they would be precluded under Arizona Rule of Criminal Procedure 32.2(a)(3) if
brought in a successive PCR petition. (Doc. 51 at 15, 36.)
Cromwell disagrees. (Doc. 61 at 11-13, 22, 34.) First, he argues that Rule 32
provides an express exception to preclusion because he was “deprived entirely of the
opportunity to vindicate his Sixth Amendment right to counsel ‘through no fault of his
own.’” (Doc. 64 at 4, quoting State v. Diaz, 340 P.3d 1069, 1070-71 (Ariz. 2014)).
Additionally, he argues that the right to counsel is “such a fundamental bedrock of criminal
law in Arizona” that the State “must prove the defendant knowingly, voluntarily, and
intelligently waived’ that right.” (Id. at 4-5, quoting State v. Anderson, 547 P.3d 345, 351
(Ariz. 2024)). Finally, in addition to arguing that the procedural rules in Arizona regarding
successive or untimely PCR applications are not consistently applied to capital cases,
Cromwell asserts that he was incompetent throughout his state-court proceedings and that
this entitles him to merits review of his claims. (Id. at 5-6, citing Fitzgerald v. Myers, 402
P.3d 442, 450 (Ariz. 2017)). At a minimum, Cromwell argues that “there is a nontrivial
possibility that an Arizona court would find an exception to the preclusion bar of Rule
32.2(a)(3),” so this Court “should not on [its] own hold that the bar applies.” (Id. at 6,
quoting Doerr v. Shinn, 127 F.4th 1162, 1174 (9th Cir. 2025), amended and superseded by
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176 F.4th 1117 (2026)).
“[A] state procedural default rule applies only when ‘it is clear that the state court
would hold the claim procedurally barred.’” Doerr, 176 F.4th at 1126 (quoting Franklin
v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002)). Arizona’s procedural-default rule
precludes any post-conviction claim “waived at trial or on appeal, or in any previous post-
conviction proceeding, except when the claim raises a violation of a constitutional right
that can only be waived knowingly, voluntarily, and personally by the defendant.” Rule
32.2(a)(3). “[Arizona’s] preclusion rules require a defendant to raise all known claims for
relief in a single petition to prevent endless trial-court reviews of the same case.”
Anderson, 547 P.3d at 350. The preclusive effect of Rule 32.2(a) may be avoided only if
a claim falls within certain exceptions and the petitioner can justify his omission of the
claim from a prior petition or adequately explain his failure to present the claim in a timely
manner. See Rule 32.1(b)-(h), 32.2(b), 32.4(b)(3). The Ninth Circuit has held that “[Rule]
32.2(a)(3) is independent of federal law and has been regularly and consistently applied,
so it is adequate to bar federal review of a claim.” Jones v. Ryan, 691 F.3d 1093, 1101 (9th
Cir. 2012).
Under Arizona law, collateral review proceedings are the first point at which an
ineffective assistance of counsel (“IAC”) claim may be presented for review. State v.
Spreitz, 39 P.3d 525, 527 (Ariz. 2002); accord State v. Traverso, 576 P.3d 97, 99 (Ariz.
2025). Additionally, “the ground of ineffective assistance of counsel cannot be raised
repeatedly” in state court. Anderson, 547 P.3d at 350. Generally, where an IAC claim was
raised or could have been raised in a previous Rule 32 PCR proceeding, “subsequent claims
of ineffective assistance will be deemed waived and precluded.” Id. (quoting Spreitz, 39
P.3d at 526 (2002)).
Preclusion of IAC claims, however, is not automatic. Traverso, 576 P.3d at 104.
As the Arizona Supreme Court recently explained, whether a defendant must personally
waive an IAC claim to warrant preclusion under Rule 32.2(a)(3) depends on the particular
right implicated by the allegedly ineffective representation. Id. at 105. The rights to
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counsel, to a jury trial, and to a twelve-person jury have been identified as belonging to the
narrow category of rights that are of sufficient constitutional magnitude to require a
defendant’s knowing, voluntary, and personal waiver. Id. at 106. In Traverso, the IAC
claim at issue concerned the defendant’s “right to be sufficiently informed of the
prosecution’s plea offer to decide whether to accept it, plead guilty, and waive a jury trial”
and was thus of “sufficient constitutional magnitude” for purposes of Rule 32.2(a)(3) to
require the defendant’s “knowing, voluntary, and personal waiver.” Id.
Although Respondents correctly note that a “mere assertion by a defendant that his
or her right to a fair trial has been violated is not a claim of sufficient constitutional
magnitude” under Rule 32.2(a)(3) (Doc. 73 at 18 n.8, citation omitted), the right to conflict-
free counsel, like the right to plead guilty and waive a jury trial, is arguably a right “so
inherently personal that it cannot be waived by defense counsel; only the defendant can
waive it.” Traverso, 576 P.3d at 106, quoting Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz.
2002)); see also State v. Moody, 968 P.2d 578, 582 (Ariz. 1998) (trial court’s refusal to
appoint new counsel rendered waiver involuntary when the options presented to defendant
were continued representation by a lawyer with whom he had an irreconcilable conflict or
self-representation); Cassett v. Stewart, 406 F.3d 614, 622 (9th Cir. 2005) (noting that the
“Arizona state courts are better suited to make these determinations”—i.e., whether a claim
requires a knowing, voluntary, and intelligent waiver before preclusion applies—because
that question “may require both a fact-intensive inquiry and an application of Arizona’s
complex case law on waiver”); but see Robinson v. Schriro, 366 F. App’x 801, 803 (9th
Cir. 2010) (unpublished) (noting that PCR court declined to address the merits of habeas
petitioner’s conflict-of-interest claim, holding the claim was waived by failure to raise it
on direct appeal or in a previous collateral proceeding). “PCR counsel can waive most
claims of trial error on the defendant’s behalf by failing to assert them in a PCR petition.
If the claim is of ‘sufficient constitutional magnitude,’ however, the state must prove that
the defendant knowingly, voluntarily, and intelligently waived the claim.” Anderson, 547
P.3d at 351 (quoting State v. Diaz, 340 P.3d 1069, 1070 (Ariz. 2014)).
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Respondents do not contest Cromwell’s assertion that he did not knowingly,
voluntarily, and personally waive his right to bring these claims in his first PCR
proceeding. It is therefore not clear that the Arizona courts would find these claims
precluded under Rule 32.2(a)(3).
Respondents do, however, contend that the exception provided by Rule 32.2(a)(3)—
for claims of sufficient constitutional magnitude––has no bearing on a claim’s timeliness,
and they further contend that any attempt to bring these claims in state court now would be
futile because they are untimely and, in Arizona, timeliness is jurisdictional. (Doc. 73 at
10, citing Ariz. Rev. Stat. § 13-4234(G)); see also id. at 18 n.9, citing State v. Lopez, 323
P.3d 1164 (Ariz. App. 2014)).
To the extent Respondents rely on the jurisdictional time limitations set forth in
Ariz. Rev. Stat. § 13-4234(G), Cromwell correctly points out that the Arizona Supreme
Court has since clarified that this subsection of the statute, which eliminated the “no fault”
exception to time limits, see Lopez, 323 P.3d at 1166, is unconstitutional. State v. Bigger,
492 P.3d 1020, 1030 (Ariz. 2021). However, to the extent Respondents cite Lopez for the
proposition that a claim’s constitutional magnitude has no bearing on the issue of timeliness
under Rule 32.4, this contention is well taken. The role of personal waiver in determining
whether a claim is precluded under Rule 32.2(a)(3) was first raised in a comment to the
rule, and then later added via amendment to the rule regarding preclusion. Traverso, 576
P.3d at 103-4. The time limitations in Rule 32.4, however, do not recognize a similar
exception in either the comments or the rule itself. See Rule 32.4.
Rule 32.4(b)(3)(A) requires defendants to file PCR notices brought under Rule
32.1(a) “within 90 days after the oral pronouncement of sentence or within 30 days after
the issuance of the mandate in the direct appeal, whichever is later.” But under Rule
32.4(b)(3)(D), “[t]he court must excuse an untimely notice requesting post-conviction
relief filed under subpart (3)(A) if the defendant adequately explains why the failure to
timely file a notice was not the defendant’s fault.”
Cromwell alleges that his failure to bring Claims 1-1, 1-6, and 1-7 in a timely
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manner is attributable to PCR counsel. (Doc. 80 at 3, citing Doc. 64 at 6-7, 10.)
Respondents contend this argument is “unavailing” because there “is no Sixth Amendment
right to the effective assistance of PCR counsel.” (Doc. 73 at 17 n.7, citing Smith v. Idaho,
392 F.3d 350, 357 (9th Cir. 2004)). The Court disagrees. Respondents do not cite any
authority, and the Court is unaware of any authority, holding that only constitutional
violations can be alleged as adequate explanations for the untimeliness of a claim under
Rule 32.4(b)(3). Because Cromwell was represented by counsel during his PCR
proceedings, the Arizona courts may find that his failure to file a timely PCR notice
alleging Claims 1-1, 1-6, and 1-7 “was not his fault because he was represented by counsel
at that time.” Bigger, 492 P.3d at 1030.
In sum, because it is not clear that the Arizona courts would find Claims 1-1, 1-6,
or 1-7 precluded or untimely if brought in a second PCR petition, the Court declines to find
these claims technically exhausted through procedural default. Doerr, 176 F.4th at 1131
(“[I]t is enough for Doerr to show that ‘it is not clear that the Arizona courts would hold’
his claim barred.”) (citation omitted).
2. Claim 2-10
In Claim 2-10, Cromwell asserts that trial counsel “failed to recognize and correct
Simmons error even when alerted to it” and that this claim “was arguably presented” in
Claim C(3)(a)–(b) of his PCR Petition. (Doc. 38 at 148-49.) In their Answer, Respondents
agree that the claim was exhausted by Cromwell’s presentation of it to the PCR court and
the Arizona Supreme Court. (Doc. 51 at 84.) In his Reply, Cromwell concedes that the
Respondents have correctly identified Claim 2-10 as exhausted and asserts that the state
court’s rejection of the claim was both an unreasonable application of clearly established
federal law and an unreasonable determination of fact. (Doc. 61 at 64.) Nevertheless,
Cromwell now asserts that he is entitled to a Rhines stay with respect to Claim 2-10 because
there has been a “sea change in Arizona law” giving “rise to a new version of this claim”
and it is, at the very least, unclear that Arizona courts would apply Rule 32.2 to preclude
review of this IAC claim. (Doc. 64 at 12-13.)
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As background, during the guilt phase of Cromwell’s trial, the trial court instructed
the jurors that if they did not sentence Cromwell to death, he would be eligible for parole
after 35 years:
If you find the mitigation is sufficiently substantial to call for leniency, the
Court will sentence the defendant either to life imprisonment without the
possibility of parole or life without parole until at least thirty-five years have
passed.
(RT 03/04/2003 at 140; IOR 252 at 5.) Although parole had been eliminated for all felonies
committed after 1993, see Ariz. Rev. Stat. §41-1604.09(I), trial counsel did not object to
this instruction or ask that the jury be informed of Cromwell’s parole ineligibility.
Cromwell did not raise any Simmons-related claims in his direct appeal but argued
in Claim C(2) of his PCR Petition that he was entitled to relief under Rules 32.1(a) and (g)
for a violation of his due process right to be sentenced by a jury correctly informed of his
ineligibility for parole under Simmons and Lynch v. Arizona, 578 U.S. 613 (2016) (holding
that Simmons applies to Arizona capital cases).
The PCR court denied Cromwell’s claim of a standalone due process violation under
Rule 32.1(a) as precluded under Rule 32.2(a)(3) due to counsel’s failure to challenge the
parole eligibility instruction at trial or on appeal. (IOR 803 at 20.) The PCR court also
found that Cromwell had not stated a colorable claim under Rule 32.1(g) because he had
not shown that Lynch was applicable to his case, that it was a significant change in the law,
or that it was retroactive to Cromwell’s collateral proceedings. (Id. at 20-22.)
In Claim C(3)(a) of his PCR Petition, Cromwell alleged that trial counsel was
ineffective because “[t]rial counsel neither objected, moved for mistrial, nor requested a
positive Simmons instruction informing the jurors that [Cromwell] could never be
released,” as well as by failing to mention Cromwell’s parole ineligibility during closing
arguments even though future dangerousness was at issue. (IOR 604 at 90; see also id. at
93.) Cromwell asserted that “[c]ompetent trial and appellate counsel at the time were
raising and preserving this issue, understanding that eventually reasonable minds would
prevail.” (Id. at 93, citation omitted.) Relying on the answers that four jurors provided in
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their screening questionnaires—that the possibility of release was an important
consideration to them with future danger to society being among their concerns––
Cromwell alleged that he was prejudiced by trial counsel’s performance because “at least
one juror would have come to a different conclusion regarding the death penalty.” (Id. at
94.)
Addressing Cromwell’s claim under Strickland, the PCR court concluded that
Cromwell was not entitled to relief because:
[T]he jury convicted [Cromwell] of sexually assaulting, and beating and
stabbing to death a ten-year-old victim. The jury further found [Cromwell]
committed these crimes in an especially cruel and especially heinous or
depraved manner. Given the jury’s findings and the evidence that
overwhelmingly supports these findings, there is no reasonable probability
of a different sentencing result, but for the parole eligibility instruction.
[Cromwell] has not shown that counsel’s failure to raise the Simmons error
at trial caused prejudice.
(IOR 803 at 23.) The Arizona Supreme Court granted review of this claim but denied
relief, holding: “The record does not show that trial and appellate counsel violated
Cromwell’s Sixth Amendment right to effective assistance of counsel by failing to invoke
Simmons v. South Carolina, 512 U.S. 154 (1994).” (PR 33.)
Cromwell asserts that the PCR court’s denial of his claim rested on “decades of
misapplication” of Simmons by the Arizona Supreme Court. (Doc. 64 at 13.) He contends
that because the Arizona Supreme Court “has finally begun recognizing the error of its
Simmons-related ways,” Claim 2-10, which would ordinarily be precluded as a successive
IAC claim, is now “viable under state law” and is thus subject to a Rhines analysis. (Id. at
13-14.)
This argument lacks merit. Claim 2-10, as Cromwell acknowledges, is fully
exhausted—it was adjudicated by both the PCR court and the Arizona Supreme Court. The
stay and abeyance procedure articulated in Rhines is for the purpose of allowing federal
habeas petitioners to exhaust claims in state court that had not previously been presented
there, and to do so without dismissing their federal habeas petitions and running afoul of
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the one-year statute of limitations. Doerr, 176 F.4th at 1125. But when, as here, the state
court has already had a full opportunity to determine a constitutional issue, and in the
absence of any state interest in ruling again on a petitioner’s case, returning an exhausted
claim to state court for re-examination because of an intervening decision is “both
unnecessarily time-consuming and otherwise burdensome.” Francisco v. Gathright, 419
U.S. 59, 62–63 (1974) (quoting Roberts v. LaValle, 389 U.S. 40, 43 (1967)); see also
Moore v. Biter, 725 F.3d 1184, 1193 n.5 (9th Cir. 2013) (“The Supreme Court has
instructed . . . that when a habeas petitioner has exhausted his state remedies, he should not
be required to return to state court in light of an intervening state court decision that would
favorably resolve the petitioner’s claim.”).
Moreover, Cromwell’s argument regarding this IAC claim––that the PCR court’s
denial of his claim rests on “decades of misapplication” of Simmons by the Arizona
Supreme Court––is incorrect. In addressing Claim 2-10, the PCR court applied the second
prong of the two-pronged test from Strickland v. Washington, 466 U.S. 668 (1984), which
is the clearly established federal law governing this IAC claim. The court did so without
addressing Strickland’s deficient-performance prong. The court then denied the claim on
the grounds that Cromwell failed to demonstrate that counsel’s failure to raise the Simmons
error at trial caused prejudice.
Cromwell’s request for a Rhines stay on this ground is denied.
D. “Plainly Meritless” Analysis
“A federal habeas petitioner must establish that at least one of his unexhausted
claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v Baker,
847 F.3d 714, 722 (9th Cir. 2017). A federal court should refrain from ruling on the merits
of a claim unless “it is perfectly clear that the [petitioner] does not raise even a colorable
federal claim.” Cassett, 406 F.3d at 624. If “a reasonable state court might be persuaded
to grant relief” on a claim, it is potentially meritorious. Gonzalez v. Wong, 667 F.3d 965,
972 (9th Cir. 2011).
“As a general matter, a defendant alleging a Sixth Amendment violation must
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demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Mickens v. Taylor, 535 U.S. 162,
166 (2002) (citing Strickland, 466 U.S. at 694). The Supreme Court has held, however,
that “where assistance of counsel has been denied entirely,” there is an exception to the
general rule requiring the defendant to show the probable effect upon the outcome because
“the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is
unnecessary.” Id. (citing United States v. Cronic, 466 U.S. 648, 658-59 (1984)). Only in
“circumstances of that magnitude” does the court forgo individual inquiry into whether
counsel’s inadequate performance undermined the reliability of the verdict. Id. (quoting
Cronic, 466 U.S. at 659 n.26). Thus, prejudice may be presumed if an attorney fails to
“subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at
659. Additionally, “‘circumstances of that magnitude’ may also arise when the
defendant’s attorney actively represented conflicting interests.” Mickens, 535 U.S. at 166.
1. Claim 1-1
In Claim 1-1, Cromwell alleges that his trial counsel “effectively abandoned him
prior to trial,” giving rise to a presumption of ineffectiveness under Cronic. (Doc. 38 at
43.) Cromwell asserts that counsel abandoned the duty of loyalty to him, telling him before
trial that “he would be found guilty” and “would without a doubt be given a death
sentence.” (Id. at 44.) Cromwell alleges that counsel harbored great antipathy toward him
and confirmed during an ex parte hearing that he would “succumb completely to the
prosecution.” (Id.) Cromwell further alleges that counsel capitulated to “nearly every
aspect of Mr. Cromwell’s case” by “barely questioning a single prospective juror”;
“inexplicably declining to give an opening statement”; failing to cross examine vital
witnesses, including the detective and the medical examiner; failing to challenge the DNA
evidence; giving an argument in which he did not get the victim’s name right; and giving
away numerous key points of the State’s case. (Id. at 44-45.)
Having reviewed the record and transcripts of Cromwell’s trial, the Court finds it
clear that this claim is plainly meritless. 28 U.S.C. § 2254(b)(2) (“An application for a writ
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of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”); Cassett, 406 F.3d at 624
(“Adopting a standard that allows a federal court to deny relief on the merits of an
unexhausted claim only when it is perfectly clear that the petitioner has no chance of
obtaining relief comports with the legislative history of § 2254(b)(2). The House Report
on the AEDPA explained that this provision ‘will help avoid the waste of state and federal
resources that now result [sic] when a prisoner presenting a hopeless petition to a federal
court is sent back to the state courts to exhaust state remedies.’”) (citation omitted).
Cronic held that the application of presumptive prejudice is appropriate when “there
[is] a breakdown in the adversarial process,” such that “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659, 662. The Supreme
Court has made clear, however, that the Cronic exception is very narrow. “When we spoke
in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test
the prosecutor’s case, we indicated that the attorney’s failure must be complete.” Bell v.
Cone (“Cone”), 535 U.S. 685, 696-97 (2002); see also United States v. Thomas, 417 F.3d
1053, 1057 (9th Cir. 2005) (explaining that in Cone “the Court emphasized that Cronic’s
exception for failing to test the prosecution’s case applies when the attorney’s failure to
oppose the prosecution goes to the proceeding as a whole—not when the failure occurs
only at specific points in the trial”).
Cronic is inapplicable here because Cromwell only criticizes specific points where
his trial counsel took no action. The record belies Cromwell’s assertion that counsel
completely failed to subject the prosecution’s case to meaningful adversarial testing. Cone,
535 U.S. at 698 (“The aspects of counsel’s performance challenged by respondent—the
failure to adduce mitigating evidence and the waiver of closing argument—are plainly of
the same ilk as other specific attorney errors we have held subject
to Strickland’s performance and prejudice components.”).
Cromwell’s counsel opposed the State’s case at every stage of trial. Cromwell
“insisted on . . . a mistaken identify defense.” (IOR 803 at 11.) To that end, Cromwell’s
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counsel cross-examined most of the State’s primary witnesses, highlighting major
discrepancies between Jensen’s description of the man who attacked her, which she
provided to investigating officers immediately after the incident as well as in later
depositions, and her in-court identification of Cromwell, as well as other discrepancies
between statements provided to law enforcement at the time of the incident and the
witnesses’ in-court testimony. (See, e.g., RT 2/3/03 at 67 [Officer Vine], 103 [Officer
Busby]; RT 2/4/03 at 101 [Ella Speaks]; RT 2/5/03 at 39 [A.S.], 68 [Yedowitz], 118 [Fitch];
RT 2/6/03 at 71 [Sartor], 105 [Detective Caruso]; RT 2/10/03 at 66 [Jensen].) Counsel also
presented three defense witnesses, including Cromwell. (RT 2/12/03.) During the
mitigation phase, counsel gave an opening statement and presented a mental health expert
(RT 2/24/03 at 31-100; RT 2/25/03 at 11-110) and presented additional mitigating evidence
through the testimony of a mitigation specialist (id. at 110-41). Counsel also gave closing
arguments during the guilt phase (RT 2/13/03 at 78-101), the aggravation phase (RT
2/20/03 at 40-44), and penalty phase of trial (RT 3/04/03 at 107-16).
Counsel also made numerous evidentiary objections and otherwise actively
represented Cromwell during trial by objecting to testimony and questioning witnesses;
arguing for the admission and preclusion of statements; requesting a witness be
admonished for making allegedly gratuitous, prejudicial comments; asking to reopen a
cross-examination after new evidence had come to light; participating in the voir dire of
jurors exposed to a news report; successfully objecting to the admission of photographs
and a portion of the autopsy report; and moving for acquittal at the conclusion of the State’s
case. (See, e.g., RT 2/3/04 at 61-62; RT 2/4/03 at 24, 47, 50, 55, 56, 87, 141-42, 182; RT
2/5/03 at 4, 10, 35, 62; RT 2/6/03 at 27; RT 2/11/03 at 4-8, 67, 73.) Even assuming for the
sake of argument that counsel may have performed deficiently in some aspects of the trial,
it cannot be said that counsel’s failure to test the prosecutor’s case was complete. It follows
that Strickland, not Cronic, provides the proper framework for analyzing Cromwell’s
specific claims of attorney error. Cone, 535 U.S. at 696-97.
Because Cromwell does not argue, in Claim 1-1, that he was prejudiced under
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Strickland by counsel’s allegedly deficient performance, Claim 1-1 is plainly meritless.5
Additionally, Cromwell’s reliance (Doc. 38 at 45) on McCoy v. Louisiana, 584 U.S. 414
(2018), is misplaced. McCoy held that trial counsel may not admit guilt at trial, no matter
how well-advised that strategy, “over the client’s intransigent objection to that admission.”
Id. at 426. But Cromwell’s counsel did not admit guilt at trial, nor did he, as Cromwell
alleges, “effectively” do so. The portion of the transcript Cromwell cites in support of this
claim is from a pretrial hearing on counsel’s motion to withdraw. (RT 11/20/02 at 8.)
Thus, even if counsel had conceded Cromwell’s guilt, it would not have been a concession
before the jury. Moreover, counsel did not concede Cromwell was guilty during the
hearing. At most, counsel conceded that he and Cromwell had a difference of strategy.
(Id.) Later, in a closed hearing, counsel advised the court that he had informed Cromwell,
based on his analysis of the evidence, that he believed that if Cromwell went to trial, he
would be convicted, and that if he was convicted, there was no doubt the jury would hand
down the death penalty. (RT 11/20/02 (closed) at 14-15.) Once again, this is not a
confession of guilt during trial, so McCoy is inapplicable.
2. Claims 1-6 and 1-7
In Claim 1-6, Cromwell alleges he was denied his Sixth Amendment right to counsel
due to attorney Logan’s simultaneous representation of Kim Jensen, a victim in this case,
and in Claim 1-7, Cromwell alleges he was denied his Sixth Amendment right to counsel
due to attorney Logan’s failure to move to withdraw based on the simultaneous
representation. (Doc. 38 at 95-96.)6
a. Relevant Background
Cromwell alleges that the Office of the Legal Advocate (“OLA”) and attorney
James Logan were appointed to represent him after the Maricopa County Public Defender
5 Cromwell does allege prejudice under Strickland from specific attorney errors in
several other claims and subclaims of his petition. The Court will consider those aspects
of Cromwell’s IAC claims in an order addressing Cromwell’s habeas petition in its entirety.
6 Cromwell was represented at trial by James P. Logan and Bruce Buck, both from
the Office of the Legal Advocate, but he asserts this claim only against Logan.
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and Office of the Legel Defender (“OLD”) withdrew from representation due to conflicts.
(Id. at 36.) Cromwell further alleges that the OLA and Logan were appointed to represent
Kim Jensen in an unrelated criminal case on October 31, 2001, the day before they were
appointed to represent him.7 (Id. at 95.) Cromwell asserts, without support, that Logan
directly represented Jensen for more than a week before he moved to withdraw on
November 8, 2001. (Id.) During this time, Cromwell contends, Logan “took action in
[Jensen’s] forgery case, requesting more time to challenge grand jury proceedings.” (Doc.
61 at 35.) Cromwell also asserts that discovery was served on Logan from Jensen’s case
before Logan withdrew. (Id.) Cromwell alleges that Logan failed to disclose the
simultaneous representation to either Cromwell or the trial court. (Doc. 38 at 96.)8
Jensen testified as a prosecution witness during Cromwell’s trial. (RT 2/10/03.)
She identified Cromwell in court as the man to whom Speaks introduced her when they
arrived at Speaks’s apartment in the early morning hours the day of Stephanie’s murder
and as the same man who then assaulted both her and Speaks and fled the apartment before
Stephanie’s body was discovered. (Id. at 34-61, 101-02.) Logan cross-examined Jensen
and attacked her credibility before the jury by establishing that she had been released from
jail right before the murder and was living with a drug dealer name Kelley; that she had
previously stated that the person who assaulted her had also been at the drug dealer’s
apartment and helped her push her car earlier in the evening; that she testified that Speaks
had referred to Cromwell as Bobby but had told the police that she used the name Tim; and
that she had first described her assailant as a bald “skinhead” with tattoos, a description
7 It appears from the record that Logan may have been appointed to represent
Cromwell on October 30, 2001, the day before he was allegedly appointed to represent
Jensen. Although the trial court granted a motion to withdraw and entered an order
appointing the OLA to represent Cromwell on November 1, 2001 (IOR 12), Logan had
already appeared on behalf of Cromwell for an arraignment on October 31, 2001, and stated
in court that he had been appointed to represent Cromwell the day before. (RT 10/31/01
p.m. at 3; see also IOR 16 [minute entry dated October 31, 2001, appointing Logan to
represent Cromwell in all further proceedings].)
8 Because Cromwell has not yet filed a notice of request for evidentiary development,
the Court gives him the benefit of the doubt and analyzes this claim as alleged.
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that did not fit Cromwell. (Id. at 66-69, 76, 82, 85, 89-92.)
b. Analysis
The Sixth Amendment right to counsel includes the right to assistance by a conflict-
free attorney. Wood v. Georgia, 450 U.S. 261, 271 (1981). A conflicted-counsel claim has
merit when counsel “actively represented conflicting interests” and when those conflicting
interests “actually affected the adequacy of his representation.” Lockhart v. Terhune, 250
F.3d 1223, 1230 (9th Cir. 2001); see also United States v. Walter-Eze, 869 F.3d 891, 900
(9th Cir. 2017). If both tests are met, a defendant need not demonstrate prejudice to obtain
relief. Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). Prejudice is presumed in that
circumstance because the “assistance of counsel has been denied entirely or during a
critical stage of the proceeding.” Mickens v. Taylor, 535 U.S 162, 166 (2002). An “actual
conflict of interest” means “a conflict that affected counsel’s performance—as opposed to
a mere theoretical division of loyalties.” Id. at 171 (emphasis in original).
Cromwell argues there was an “actual conflict,” and thus a presumption of
prejudice, based on Logan’s brief representation of Jensen in a forgery case at the same
time Logan represented Cromwell at the outset of his murder case. The Court disagrees.
In Mickens, “the Supreme Court explicitly limited this presumption of prejudice for an
actual conflict of interest . . . to cases involving ‘concurrent representation’”––that is,
simultaneous representation of two or more defendants. Rowland v. Chappell, 876 F.3d
1174, 1192 (9th Cir. 2017) (citing Mickens, 535 U.S. at 175); see also Earp v. Ornoski, 431
F.3d 1158, 1184 (9th Cir. 2005) (“The Mickens Court specifically and explicitly concluded
that Sullivan was limited to joint representation . . . .”). The Court explained that the
presumption of prejudice is needed in cases of concurrent representation because of “the
high probability of prejudice arising from multiple concurrent representation, and the
difficulty of proving that prejudice.” Mickens, 535 U.S. at 175. “Not all attorney conflicts
present comparable difficulties,” however, and the Mickens Court criticized circuit courts
for applying “Sullivan unblinkingly to all kinds of alleged attorney ethical conflicts,”
including cases when “there is a conflict rooted in counsel’s obligation to former
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clients.” Id. at 174 (cleaned up). Accordingly, the Court concluded that the Sullivan
presumption of prejudice did not apply to a conflict of interest rooted in the petitioner’s
counsel’s previous brief representation of the victim. Id. at 164-65, 175-76; see also
Rowland, 876 F.3d at 1192 (“We have held that a state court’s rejection of a conflict claim
not stemming from concurrent representation is neither contrary to, nor an unreasonable
application of, established federal law as determined by the United States Supreme
Court.”); Earp, 431 F.3d at 1184. Because Cromwell has not clearly alleged or shown
concurrent representation, he does not benefit from a presumption of prejudice. See also
Rienhardt v. Thornell, 178 F.4th 539, 556 (9th Cir. 2026) (“Rienhardt’s reliance on
Sullivan is misplaced because the Supreme Court has not extended its holding to any
context beyond concurrent conflicting representation.”); Jackett v. Santoro, 2023 WL
3990060, *15-16 (S.D. Cal. 2023), report and recommendation adopted, 2023 WL
7547517 (S.D. Cal. 2023) (concurrent representation not clearly alleged or shown where
petitioner’s attorney had previously represented the state’s key witness and parts of the
witness’s prior unrelated case were ongoing during petitioner’s trial).
At any rate, even if the Sullivan exception applies to the representation here, there
is no evidence that an actual conflict adversely affected Logan’s representation of
Cromwell. Walter-Eze, 869 F.3d at 906. Conflicts of interest can arise both in cases of
simultaneous and successive representation, but it is more difficult to show an actual
conflict in the latter circumstance. Manhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988).
Here, as an initial matter, it is difficult to ascertain whether Logan’s representation was
simultaneous or merely successive because Cromwell’s relevant allegations are entirely
without factual support. (Doc. 51 at 37 [“As an initial matter, Cromwell fails to cite
anything in the state court record supporting that Logan ever represented Kim, and this
Court, in accordance with Pinholster, should decline to consider new evidence.”].)
In any event, the inquiry “does not rely on the characterization or type of conflict
presented: an ‘actual conflict is defined by its impact’ on counsel’s representation.”
Walter-Eze, 869 F.3d at 901 (quoting Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2005)).
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“In successive representation, conflicts of interest may arise if the cases are substantially
related or if the attorney reveals privileged communications of the former client or
otherwise divides his loyalties.” Hovey, 458 F.3d at 908 (quoting Mannhalt, 847 F.2d at
580). “One of the risks created by successive representation is ‘that the attorney who has
obtained privileged information from the former client may fail to conduct a rigorous cross-
examination [of that client] for fear of misusing that confidential information.’” United
States v. Shwayder, 312 F.3d 1109, 1118 (9th Cir. 2002) (citation omitted).
First, the Court considers whether the two cases are substantially related.
“Substantiality is present if the factual contexts of the two representations are similar or
related.” Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). “If there is a reasonable
probability that confidences were disclosed [in the earlier representation] which could be
used against the former client in the later adverse representation . . . a substantial
relationship between the two cases will be presumed.” Thomas, 878 F.2d at 288 (citing
Trone, 621 F.2d at 999). “This inquiry calls for a careful comparison between the factual
circumstances and legal theories of the two cases.” In re Cnty. of Los Angeles, 223 F.3d
990, 994 (9th Cir. 2000).
Cromwell has not demonstrated a substantial relationship within the meaning of
Trone. Even assuming that Logan in fact represented Jensen in a forgery case, Cromwell
does not assert that the allegations or evidence in the forgery case are linked in any way to
Cromwell’s murder trial. Instead, he merely notes that the fact of a forgery conviction
should have been used for impeachment purposes because it is “indicative of deceitfulness
and dishonesty.” (Doc. 61 at 35.) This does not establish a substantial relationship because
“[t]he relationship is measured by the allegations in the complaint and by the nature of the
evidence that would be helpful in establishing those allegations,” Trone, 621 F.2d at 1000,
and Cromwell does not allege that the allegations underlying these two cases or the
evidence necessary to prove those allegations are related.
Next, the Court considers whether Cromwell has alleged an actual conflict resulting
in an adverse effect, that is, whether Cromwell has demonstrated “that some plausible
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alternative defense strategy or tactic might have been pursued but was not and that the
alternative defense was inherently in conflict with or not undertaken due to the attorney’s
other loyalties or interests.” Hovey, 458 F.3d at 908 (quoting United States v. Wells, 394
F.3d 725, 733 (9th Cir. 2005)). In response to Respondents’ assertion that Logan’s
performance was not affected by the alleged conflict because he still cross-examined
Jensen regarding her release from jail right before the murder (Doc. 51 at 37), Cromwell
asserts that this impeachment “pales in comparison to informing the jury Jensen was
convicted of forgery––that is, she was found deceitful and dishonest beyond a reasonable
doubt.” (Doc. 61 at 36.) Cromwell does not dispute Respondents’ assertion (Doc. 51 at
37) that the most Logan could have done would have been to inform the jury of the fact of
the conviction, the name of the crime, and the place and the date of the offense. State v.
Tucker, 759 P.2d 579, 594 (Ariz. 1988) (“Under Arizona law, impeaching a witness with
a prior felony conviction is limited to showing the fact of the conviction, the name of the
crime, the place, and the date.”). Instead, Cromwell emphasizes that the fact Jensen was
convicted of a crime of dishonesty “is vastly different than simply living with a drug
dealer.” (Doc. 61 at 36-37.) But Cromwell has failed to show a link between Logan’s
failure to impeach Jensen with her prior conviction and the alleged conflict. Alberni v.
McDaniel, 458 F.3d 860, 872 (9th Cir. 2006) (“A link between deficient performance and
the conflict of interest must be shown.”) (citations omitted). Because only the fact of the
conviction—a matter of public record—could be used to impeach Jensen, Logan had no
reason to refrain from cross-examining her regarding the forgery conviction for fear of
misusing confidential information.
Cromwell also asserts that because Logan received discovery during his brief
representation of Jensen, there was a “possibility that Logan learned privileged information
during his stint as [Ms.] Jensen’s attorney.” (Doc. 64 at 11.) Cromwell speculates that
Logan failed to adequately cross-examine Jensen because he was “hamstrung by his ethical
obligations to his former client.” (Doc. 38 at 95.) He argues that Logan failed to uncover
potential evidence under Brady v. Maryland, 373 U.S. 83 (1963), related to Jensen because
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investigating Jensen’s forgery convictions would have led Logan “too close to his
conflicting obligations.” (Doc. 61 at 36, citing Doc. 38 at 182–84 [claiming Jensen appears
to have received special sentencing treatment on her forgery charges, likely in return for
testifying for the prosecution at Cromwell’s murder trial].)
It is true that “[a]mong the dangers in a successive representation situation is that
the attorney who has obtained privileged information from the former client may fail to
conduct a rigorous cross-examination for fear of misusing that confidential information.”
Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir. 1989). Even so, Cromwell has
not established the necessary link between Cromwell’s performance and the asserted
conflict of interest. Alberni, 458 F.3d at 872. In Clark v. Chappell, 936 F.3d 944 (9th Cir.
2019), the Ninth Circuit considered a habeas claim that trial counsel had a conflict of
interest based on counsel’s prior representation of a witness for the state. Id. at 984. The
court found it “troubling” that counsel had personally represented the witness and
possessed confidential information from their attorney-client relationship. Id.
Nevertheless, the court concluded there was nothing in the record indicating that the
conflict adversely affected counsel’s representation of the habeas petitioner because
counsel terminated representation of the witness and both counsel and co-counsel (who
cross-examined the witness at trial) attested that counsel did not share any confidential
information from counsel’s representation of the witness. Id. at 984-86.
Similarly, even assuming Logan should have informed the court and his client that
he had previously represented one of the victims for a short period of time in an unrelated
criminal matter, the purpose of the Sullivan exception “is not to enforce the Canons of
Legal Ethics.” Mickens, 535 U.S. at 176; see also Nix v. Whiteside, 475 U.S. 157, 165
(1986) (“[B]reach of an ethical standard does not necessarily make out a denial of the Sixth
Amendment guarantee of assistance of counsel”). Even assuming that Logan received
confidential information about Jensen, Cromwell’s allegation that this adversely affected
his representation amounts to no more than a potential “theoretical division of loyalties”
and does not support his claim that there existed a “conflict that affected counsel’s
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performance.” Mickens, 535 U.S. at 171; see also Noguera v. Davis, 5 F.4th 1020, 1037
(9th Cir. 2021) (“The issue is whether there existed a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties. To make this
showing, the petitioner must demonstrate that some plausible alternative defense strategy
or tactic might have been pursued but was not and that the alternative defense was
inherently in conflict with or not undertaken due to the attorney’s other loyalties or
interests.”) (cleaned up).
Claims 1-6 and 1-7 are therefore denied as plainly meritless.
E. Request for Authorization
Cromwell asks the Court to authorize the Federal Public Defender’s (“FPD”) office
to represent him in state court. (Doc. 64 at 1.)
The Criminal Justice Act provides for appointed counsel to represent their client in
“other appropriate motions and procedures.” 18 U.S.C. § 3599(e). The Supreme Court
interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009), holding that the statute
“authorizes federally appointed counsel to represent their clients in state clemency
proceedings and entitles them to compensation for that representation.” Id. at 194. The
Court explained that “subsection (a)(2) triggers the appointment of counsel for habeas
petitioners, and subsection (e) governs the scope of appointed counsel’s duties.” Id. at 185.
The Court noted, however, that appointed counsel is not expected to provide each of the
services enumerated in section (e) for every client. Rather, “counsel’s representation
includes only those judicial proceedings transpiring ‘subsequent’ to her appointment.” Id.
at 188.
Harbison addressed the concern that federally appointed counsel would be required
to represent their clients in state retrial or state habeas proceedings that occur after
counsel’s appointment because such proceedings are also “available post-conviction
process.” Id. The Court explained that § 3599(e) does not apply to those proceedings
because they are not “properly understood as a ‘subsequent stage’ of judicial proceedings
but rather as the commencement of new judicial proceedings.” Id. at 189. See also Lugo
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v. Sec'y, Fla. Dep’t of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014) (explaining that “a state
prisoner is not entitled, as a matter of statutory right, to have federally paid counsel assist
him in the pursuit and exhaustion of his state postconviction remedies, including the filings
of motions for state collateral relief . . . .”). However, Harbison also noted that “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.” 556 U.S. at 190 n.7.
Here, the Court has determined that Cromwell is not entitled to a Rhines stay. Based
on that determination, together with Harbison’s discussion of the parameters of § 3599(e),
the Court concludes it is not necessary or appropriate to authorize the FPD to represent
Cromwell in state court.
Accordingly,
IT IS ORDERED that:
1. Claims 1-1, 1-6, and 1-7 in the Amended Petition (Doc. 38) are denied.
2. Cromwell’s motion for stay and abeyance (Doc. 64) is denied.
3. Cromwell’s motion to strike (Doc. 65) is denied.
4. Cromwell’s request for federal habeas counsel to represent him in state court
(Doc. 64 at 1) is denied.
Dated this 8th day of July, 2026.
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