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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Apelt, 

Petitioner, 

vs.

Charles L. Ryan, et al., 

Respondents. 

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No. CV-98-0882-PHX-ROS

DEATH PENALTY CASE

ORDER VACATING STAY AND

SETTING CASE MANAGEMENT

DEADLINES

The Court has reviewed the current partial stay of these proceedings, is vacating that

stay, and issuing this Case Management Order based on the following. 

On September 26, 2002, this Court stayed Petitioner’s sentencing-related claims

pending his state court litigation regarding the application to his capital sentence of Ring v.

Arizona, 536 U.S. 584 (2002), and Atkins v. Virginia, 536 U.S. 304 (2002). (Dkt. 117.) In

Summerlin v. Schriro, 542 U.S. 348 (2004), the Supreme Court determined that Ring does

not apply retroactively to cases, such as Petitioner’s, on collateral review. Petitioner has

been in state court proceedings litigating his Atkins claim, which included an evidentiary

hearing. During the stay, Petitioner has been required to and filed status reports with this

Court updating the progress of his state-court proceedings. The state court proceedings

regarding his Atkins claim are now concluded. Therefore, the stay of Petitioner’s sentencingrelated claims is ready to be lifted. 
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On June 4, 2010, this Court held a status conference with the parties to discuss

vacating the stay, Petitioner filing a motion to amend his current habeas petition, the filing

of any motion for evidentiary development, and the setting of necessary case management

deadlines.

Accordingly,

IT IS HEREBY ORDERED vacating the stay of proceedings in this case. (Dkt.

117.)

IT IS FURTHER ORDERED that Petitioner shall file a motion to amend his current

habeas petition no later than October 4, 2010. Petitioner’s motion to amend shall conform

with the District’s Local Rules, specifically LRCiv 15.1. 

IT IS FURTHER ORDERED that Respondents shall file their response to

Petitioner’s motion to amend by December 3, 2010, and Petitioner shall file a reply by

February 4, 2011. Simultaneous with the date that Petitioner files his reply, February 4,

2011, Petitioner shall file any motion for further evidentiary development of his sentencing

claims. Such motions include, but are not limited to, requests for discovery, expansion of the

record and evidentiary hearing under Rules 6, 7 and 8 of the Rules Governing Section 2254

Cases. Any motion for evidentiary development shall not recite legal authority on the merits,

or present new material facts, in support of the claims raised in the amended petition; nor

shall the motion raise new claims for habeas relief. Rather, the motion shall be limited to the

identification of the claims for which development is sought, the evidence sought to be

developed, and the applicable standards governing evidentiary development. To this end,

any motion for evidentiary development shall: 

A. identify the enumerated claim(s) Petitioner contends need further

factual development;

B. provide an offer of proof (i.e., declarations, documentary evidence,

summaries of proposed testimony) setting forth the facts to be

developed and the source of the proffered evidence; and

C. apply the applicable standards for obtaining evidentiary development,

including an explanation of why the claim was not developed in state

court and why the failure to develop the claim in state court was not the

result of lack of diligence, in accordance with 28 U.S.C. § 2254(e)(2)
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and Williams v. Taylor, 529 U.S. 420 (2000).

Any motion for evidentiary development that fails to address the above-listed

requirements will be summarily denied.

IT IS FURTHER ORDERED that Respondents shall file their response to

Petitioner’s motion for evidentiary development by March 4, 2011, and Petitioner shall file

a reply by April 4, 2011.

IT IS FURTHER ORDERED that, for ease of citation, the Court requests that the

parties provide in an appendix any additional parts of the state court record that the parties

believe are relevant to resolving allegations in the motion to amend and/or motion for

evidentiary development. 

IT IS FURTHER ORDERED that the Clerk of the Court update the title of this case

to reflect the substitution of Charles L. Ryan as the Director of the Department of

Corrections.

DATED this 9th day of June, 2010.