United States District Court, D. Arizona
JENNIFER G. ZIPPS, District Judge.
Petitioner Joseph Wood is an Arizona death row inmate. His execution is scheduled for July 23, 2014. Before the Court are Petitioner's Motion for Relief from Judgment Pursuant to Rule 60(b)(6) and Motion for Stay of Execution, which were filed July 17, 2014. (Docs. 116, 117.) Respondents filed a response in opposition, to which Petitioner filed a reply. (Docs. 122, 123.)
Citing Martinez v. Ryan, 132 S.Ct. 1309 (2012), Petitioner asserts he is entitled to relief based on the ineffectiveness of his post-conviction counsel, which prevented this Court from addressing the following allegations: that the trial court prevented Petitioner from obtaining neurological mitigating evidence; that trial counsel was ineffective for failing to impeach a State's witness; that appellate counsel had a conflict of interest; and that trial counsel performed an inadequate mitigation investigation. ( See Doc. 116 at 2, 4-14.) For the reasons set forth below, Petitioner's Rule 60(b) motion is denied, as is his motion for a stay of execution.
Petitioner shot and killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, on August 7, 1989. Following a jury trial, Petitioner was convicted of two counts of first degree murder and two counts of aggravated assault. He was sentenced to death for each murder and for a term of imprisonment for each aggravated assault. The Arizona Supreme Court affirmed the convictions and sentences on October 11, 1994. State v. Wood, 881 P.2d 1158 (1994). The United States Supreme Court denied certiorari on June 19, 1995. Wood v. Arizona, 515 U.S. 1147 (1995).
Petitioner filed his first Rule 32 petition for post-conviction relief ("PCR") on February 11, 1992. The trial court stayed the petition pending the outcome of the direct appeal to the Arizona Supreme Court. Following its receipt of the mandate, the trial court appointed new counsel to represent Petitioner. He filed a new PCR petition on March 1, 1996. The trial court denied the petition on June 6, 1997. The Arizona Supreme Court denied a petition for review on November 14, 1997.
Petitioner filed a petition for writ of habeas corpus on February 3, 1998, and an amended petition on November 30, 1998. (Docs. 1, 23.) On March 22, 2006, the Court issued an order addressing the procedural status of Petitioner's claims. (Doc. 63.) The Court addressed the remaining claims on the merits and denied habeas relief in an order and judgment dated October 25, 2007. (Docs. 79, 80.) Petitioner appealed to the Ninth Circuit Court of Appeals.
In August 2012, Petitioner moved the Ninth Circuit to remand the case to this Court. Motion for Remand, Wood v. Ryan, 693 F.3d 1104 (No. 74). He argued, pursuant to Martinez, that PCR counsel's ineffective performance constituted cause for the default of his ineffective assistance of counsel claims. Id. The Court of Appeals denied remand. Id. (No. 77.)
On September 10, 2012, the Ninth Circuit affirmed this Court's denial of habeas relief, Wood v. Ryan, 693 F.3d 1104 (9th Cir. 2012). The United States Supreme Court denied certiorari on October 7, 2013. Wood v. Ryan, 134 S.Ct. 239 (2013).
Petitioner filed a second PCR petition on August 2, 2002. The trial court denied the petition on November 7, 2002. The Supreme Court denied the petition for review on May 26, 2004.
The State filed a Motion for Warrant of Execution on April 22, 2014. The warrant was granted on May 28, and execution was set for July 23, 2014.
On April 30, 2014, the Court granted Petitioner's motion to substitute the Federal Public Defender's Office ("FPD") as co-counsel. (Doc. 105.)
Petitioner filed a third PCR petition on May 6, 2014, raising two claims: (1) there has been a significant change in the law of "causal connection, " as it relates to the consideration of mitigating evidence at sentencing, and (2) appellate counsel provided ineffective assistance as a result of an actual conflict of interest. The court denied the petition on July 9, 2014.
On July 14, 2014, Petitioner filed a petition for review in the Arizona Supreme Court. The court denied the petition on July 17, 2014.
On July 17, 2014, Petitioner filed the instant motion for relief from judgment and motion for a stay, and this Court set a briefing schedule. (Docs. 116, 117, 118.)
I. Martinez v. Ryan
In Martinez, the Court created a narrow exception to the well-established rule in Coleman v. Thompson, 501 U.S. 722, 731 (1991), that ineffective assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse the procedural default of an ineffective assistance of counsel claim. Under Martinez, a petitioner may establish cause for the procedural default of a claim of ineffective assistance of trial counsel by demonstrating two things: (1) "counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), " and (2) "the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318).
The Ninth Circuit recently extended the holding in Martinez to apply to procedurally defaulted claims of ineffective assistance of appellate counsel. Ha Van Nguyen v. Curry, 736 F.3d 1287, 1294B95 (9th Cir. 2013).
II. Rule 60(b)(6)
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). A motion under subsection (b)(6) must be brought "within a reasonable time, " Fed.R.Civ.P. 60(c)(1), and requires a showing of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). "Such circumstances will rarely occur in the habeas context." Id.
A. Extraordinary circumstances
Petitioner contends that the Martinez decision constitutes an extraordinary circumstance. When a petitioner seeks post-judgment relief based on an intervening change in the law, the Ninth Circuit has directed district courts to balance numerous factors on a case-by-case basis. Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009); see also Lopez v. Ryan, 678 F.3d 1131, 1135-37 (9th Cir. 2012). These factors include whether "the intervening change in the law... overruled an otherwise settled legal precedent"; whether the petitioner was diligent in pursuing the issue; whether "the final judgment being challenged has caused one or more of the parties to change his position in reliance on that judgment"; whether there is "delay between the finality of the judgment and the motion for Rule 60(b)(6) relief"; whether there is a "close connection" between the original and intervening decisions at issue in the Rule 60(b) motion; and whether relief from judgment would upset the "delicate principles of comity governing the interaction between coordinate sovereign judicial systems." Phelps, 569 F.3d at 1135-40. Having carefully balanced these factors, the Court concludes that they weigh against granting post-judgment relief.
B. Second or successive petitions
For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth in 28 U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court explained that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits. " 545 U.S. at 532. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at n.4. The Court further explained that a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely asserts that a ...