Moormann v. Schriro, No. 08-88035 (9th Cir. 2012)
Annotate this CasePetitioner was convicted in 1985 of the first-degree murder of his adoptive mother and was sentenced to death. Petitioner subsequently applied for a stay of execution and permission to file a second or successive habeas petition in federal district court. Petitioner claimed that both of his lawyers in state court failed to raise a colorable claim such that either one or both effectively "abandoned" him. Petitioner also claimed that he was now mentally retarded and could not be executed for that reason. The court held that, assuming Maples v. Thomas applied retroactively, petitioner could not make a prima facie showing that his postconviction counsel abandoned him within the meaning of Maples. Moreover, the court actually considered the merits of essentially the same claim in petitioner's first federal habeas petition. Even if petitioner could conclusively show that he was currently mentally retarded, the court held that the Arizona Supreme Court's decision was not contrary to or an unreasonable application of clearly established Supreme Court precedent. Accordingly, the court denied petitioner's request to file a second habeas petition and his motion to recall the mandate. The court affirmed the district court's denial of the Rule 60(b) motion. The court found that petitioner had failed to show a strong likelihood of relief on the merits and so denied his motion for a stay of execution.
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