Reported / Citable
Background
Eugene Allen Doerr, an Arizona death-row prisoner, has been litigating his federal habeas petition since 2002. The petition challenges both his conviction and his death sentence. Doerr seeks to add a claim that his trial counsel was ineffective at the sentencing phase — failing to investigate or present substantial mitigating evidence — but he never raised that claim in his first state post-conviction relief (PCR) petition.
To exhaust the IAC claim now, Doerr would need to file a second Arizona PCR petition. But Arizona’s Rule 32.2(a)(3) generally precludes second PCR petitions, and the federal one-year AEDPA statute of limitations could expire while he tries. The U.S. Supreme Court in Rhines v. Weber (2005) authorized federal courts to stay and abey a federal habeas petition while the petitioner returns to state court to exhaust unraised claims, provided the petitioner shows: (1) good cause for the failure to exhaust, (2) the claim is potentially meritorious, and (3) no intentional delay.
The Ninth Circuit panel — Judges W. Fletcher, Forrest, and Thomas — initially issued an opinion in January 2025 granting a Rhines stay for both Doerr’s IAC-at-sentencing claim and his Atkins v. Virginia (2002) claim that he is constitutionally ineligible for execution because of intellectual disability. Before the mandate issued, the Arizona Supreme Court decided State v. Traverso (2025), which addressed how Rule 32.2(a)(3) handles IAC claims in second PCR petitions. The Ninth Circuit then amended its opinion to take Traverso into account.
The Court’s Holding
In the amended opinion, the panel reaffirmed that all three Rhines criteria were satisfied for Doerr’s IAC-at-sentencing claim. Critically, the panel held it could not be sure how Arizona courts would treat the second PCR petition under Traverso, State v. Diaz (2014), and State v. Anderson (2024) — three decisions that, taken together, leave open the possibility that an Arizona court might hear an IAC claim raised for the first time in a second PCR if the case presents "compelling and unusual circumstances." This is a capital case in which trial counsel and first-PCR counsel both performed abysmally, and an enormous amount of mitigating evidence has never been presented to the Arizona courts. Principles of comity and federalism, the panel reasoned, counsel against a federal court substituting its own procedural-bar judgment for that of the state courts.
The panel found Doerr satisfied each Rhines element: (1) good cause — his failure to present the claim was due to first-PCR counsel’s ignorance or inadvertence; (2) potential merit — the IAC-at-sentencing claim, given the volume of unpresented mitigation, is at least colorable; (3) no dilatory tactics — Doerr has been pursuing his rights diligently.
On the Atkins claim — Doerr’s argument that intellectual disability bars his execution under the Eighth Amendment — the panel changed course from its original opinion. Rather than granting the Rhines stay for that claim itself, the panel held that the district court should address the question in the first instance on remand. Judge Forrest dissented from the court’s analysis on the IAC stay.
Key Takeaways
- Rhines stay-and-abey is alive and well in the Ninth Circuit for capital petitioners with unraised IAC-at-sentencing claims, even when state procedural-bar law creates uncertainty about whether the claim can actually be heard on remand.
- Comity and federalism arguments favor the petitioner when state procedural-bar law is unsettled — federal courts won’t substitute their judgment for state courts in close cases.
- State PCR counsel’s ignorance or inadvertence can satisfy Rhines’s "good cause" requirement, particularly in capital cases with substantial unpresented mitigating evidence.
- Atkins intellectual-disability claims may now follow a different procedural path — the district court should address them in the first instance rather than receiving them on a Rhines stay from the Ninth Circuit.
- Amended-opinion procedure: when intervening state-court precedent (here, Traverso) materially changes the analysis, the Ninth Circuit will withdraw, amend, and reissue rather than letting the original opinion stand.
Why It Matters
For California capital habeas practitioners, Doerr is meaningful even though it arises out of Arizona. The Ninth Circuit’s published Rhines analysis applies equally to California capital petitioners with unraised IAC-at-sentencing claims. The opinion makes clear that federal courts should be willing to grant Rhines stays in capital cases where: (a) state PCR counsel was deficient; (b) substantial mitigating evidence was never presented; (c) state procedural-bar law is unsettled enough that the federal court cannot confidently say the state claim is hopeless.
For non-capital practitioners, the case still matters as a reminder that Rhines is the procedural workhorse for adding new claims to a pending federal petition without losing AEDPA timeliness — and that the Ninth Circuit reads its three prongs flexibly when the equities favor the petitioner. Capital litigators in California should pay particular attention to the panel’s framework for evaluating "good cause" based on prior counsel’s performance, which is directly portable to California Habeas Corpus Resource Center cases.