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Armstrong v. Ryan

United States District Court, D. Arizona

March 27, 2017

Shad Daniel Armstrong, Petitioner,
Charles L. Ryan, et al., Respondents.


          Honorable Rosemary Márquez United States District Judge

         Before the Court is Petitioner Shad Armstrong's motion for an order staying and holding in abeyance these habeas proceedings. (Doc. 28.) Armstrong is an Arizona death-row prisoner. He filed a habeas petition on July 1, 2016. (Doc. 20.) In the pending motion he seeks a stay so that he can return to state court and exhaust Claims 1(A), 4(A)(4)(a)-(b), 5(B), and 6(B). (Doc. 28.) He also seeks permission for his federal habeas counsel to appear on his behalf in state court. Respondents filed a response in opposition to the requested stay, and Petitioner filed a reply. (Docs. 32, 40.) For the reasons set forth below, the motion is denied.


         In March 2000, a Pima County jury convicted Petitioner of murdering, and conspiring to murder, his sister and her fiancé. The trial judge imposed death sentences for each murder. In 2006, following the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), a jury resentenced Petitioner to death for each murder. The Arizona Supreme Court, in its opinion affirming the convictions and sentences, set forth the following facts:

In 1996, Armstrong lived in Oklahoma with his girlfriend Russette Medina and his sister Farrah. Armstrong and Farrah burglarized a home in Texas. After Armstrong learned that Oklahoma authorities were looking for him, he fled to Tucson with Medina, Medina's daughter, and Farrah.
In Tucson, Farrah met [Frank] Williams. They became romantically involved and moved into an apartment together. Armstrong and Medina could not afford rent, so they moved in with Williams and Farrah. Tensions grew in the apartment. Medina and Armstrong frequently clashed, and Farrah was upset with Armstrong because of an unpaid cable bill. In early 1998, Armstrong left the apartment and moved in with his friend David Doogan. They lived in a trailer in Three Points, Arizona, belonging to Doogan's father. Later, Medina, her daughter, and another child fathered by Armstrong also moved to the trailer in Three Points.
Meanwhile, Farrah and Williams visited Farrah's parents in Oklahoma. They shared their plans to move there and get married. Farrah discussed with her parents her need to resolve her outstanding legal problems. After returning to Tucson in early February, Farrah told Medina about her plans to return to Oklahoma and turn herself over to authorities. She also told Medina that in order to get favorable treatment, she planned to tell the Oklahoma authorities where Armstrong was located.
Medina told Armstrong about his sister's plans. He became angry and worried that he would go to prison and that he and Medina would lose custody of their children. Shortly after, Armstrong discussed Farrah's plans with Doogan and the pair started plotting to kill Farrah and Williams Several days before the murders, Armstrong and Doogan dug a grave near the trailer. On the afternoon of February 19, 1998, Armstrong asked Farrah to come to Three Points because he had money for the unpaid cable bill. He also asked her to bring Williams because they needed his help with Doogan's car. Armstrong had Medina and the children go to a different trailer so the children would not see Farrah arrive. To further prepare for the murders, Doogan and Armstrong hung sheets on the walls and gathered plastic bags and a blanket to cover the bodies. Armstrong also loaded a shotgun with deer slugs.
Near dusk, Farrah and Williams drove up to the property, Doogan opened the front door, and Armstrong hid with the shotgun. As Farrah and Williams approached the trailer, Doogan waved Armstrong off. Armstrong put down the gun and greeted Farrah and Williams. Eventually everyone was in the living room. Farrah sat on a couch, Williams sat on a recliner, and Doogan sat on a chair opposite Williams. As Doogan talked with Farrah and Williams, Armstrong retrieved the shotgun. He returned to the living room and shot Williams in the chest. Armstrong shot Farrah twice, first in the chest and then in the head. He then shot Williams in the head.
Doogan and Armstrong disposed of the bodies. They placed a plastic bag over Williams' head and wrapped the blanket around both bodies. They could not easily carry the bodies, so they dragged them outside and used a truck to pull the blanket to the open grave. They pushed the bodies into the hole and partially filled it with dirt. They then moved the bloody couch and recliner into the truck bed. Armstrong gathered some of the bloody sheets, put them in the hole with the bodies, and finished filling the grave. By that time, Medina had returned to the main trailer and soon they all got in the truck and left Three Points. They dumped the furniture in the desert and headed to Williams and Farrah's apartment, where they took some electronic items and Farrah's jewelry.
On the Sunday after the killings, Doogan's neighbor called and asked Doogan if he knew where Armstrong was. Doogan, following Armstrong's directions, said that Armstrong had left for Michigan. Armstrong immediately prepared to leave town. Armstrong, Medina, and the children spent several months in Los Angeles before relocating to Odessa, Texas. Despite these evasive maneuvers, an investigation was already in progress. A friend of Williams and Farrah called the police about their disappearance, and authorities discovered the blood-stained furniture in the desert. Doogan's father also contacted the police. The police obtained a search warrant for the Three Points property, discovered the bodies, and began searching for Armstrong and Medina. Nearly a year after the killings, authorities arrested them in Texas.

State v. Armstrong, 218 Ariz. 451, 456-58, 189 P.3d 378, 383-85 (2008).


         1. Rhines Stay and Abeyance

         A federal court may not “adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-519 (1982)). In Rhines, however, the Supreme Court held that “a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition.” Id. at 271-72. This discretion is to be exercised under “limited circumstances, ” id. at 277, because “routinely granting stays would undermine the AEDPA's goals of encouraging finality and streamlining federal habeas proceedings.” Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014).

         The stay-and-abeyance procedure is appropriate only where the habeas petitioner has shown: (1) “good cause” for the failure to exhaust, (2) the unexhausted claim is “potentially meritorious, ” and (3) the petitioner did not “engage[] in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify” the failure to exhaust the claim in state court. Blake, 745 F.3d at 982. However, “even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.” Rhines, 544 U.S. at 277.

         2. Exhaustion

         The Rhines procedure for staying a petition applies only to so-called “mixed petitions, ” or petitions containing both exhausted and unexhausted claims. See King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009) (explaining that the Rhines exception to the total exhaustion rule carved out an exception allowing mixed petitions to remain pending in federal court under limited circumstances). A petitioner's claims are 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). This latter form of exhaustion, where a petitioner has failed to meet the State's procedural requirement for presenting a claim in state court, is described as “technical exhaustion” through procedural default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“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).


         Petitioner seeks a stay so that he can return to state court and exhaust the unexhausted claims presented in his habeas petition. Though Petitioner asserts that all of the unexhausted claims in his petition meet the requirements for receiving a stay under Rhines, he addresses the specific criteria of Rhines in support of his motion only as to four claims from his petition. Accordingly, the Court addresses Petitioner's motion only as to these claims, finding all other arguments waived.

         Respondents assert that the four claims at issue are either actually or technically exhausted, and thus Petitioner cannot obtain a Rhines stay. See, e.g., White v. Ryan, 2010 WL 1416054, *12 (D. Ariz. March 16, 2010) (“Because the Petition in this case contains claims that are either actually or technically exhausted, it is not a mixed Petition and Rhines does not apply.”); see also King, 564 F.3d at 1139-40 (explaining that Rhines “allows a district court to stay a mixed petition”). Petitioner agrees that the availability of a state remedy ...

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