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Armstrong v. Ryan

United States District Court, D. Arizona

September 7, 2017

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

         DEATH PENALTY CASE

          ORDER

          Hon. Rosemary Marquez, United States District Judge

         Pending before the Court is Petitioner Shad Armstrong's motion for leave to supplement his Petition for Writ of Habeas Corpus pursuant to Federal Rules of Civil Procedure 15(a)(2) and (d). (Doc. 58.) Armstrong is an Arizona death row prisoner. He filed a habeas petition on July 1, 2016. (Doc. 20.) In the pending motion he seeks leave to amend his Petition to include a claim alleging that a jury instruction given during his sentencing proceeding was unconstitutional under the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154 (1994). (See Docs. 58, 59.) Respondents filed a response in opposition to the requested amendment, and Petitioner filed a reply. (Docs. 61, 63.) For the reasons set forth below, the motion is denied.

         BACKGROUND

         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 re-sentenced Petitioner to death for each murder. State v. Armstrong, 189 P.3d 378, 383 (Ariz. 2008). The jury was instructed: “If your verdict is that the defendant should be sentenced to life, the defendant will not be sentenced to death, and the Court will sentence the defendant to either life without the possibility of release until 25 calendar years in prison are served or natural life which means the defendant will never be released from prison.” RT 11/14/06 at 106.[1] In proposed Claim Nineteen, Petitioner contends that the Arizona Supreme Court, recognizing the Supreme Court's recent decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016) (per curium), found this precise instruction to be unconstitutional and seeks amendment of his petition to add this claim. (See Doc. 59) (citing State v. Escalante-Orozco, 396 P.3d 798, 828-30 (Ariz. Jan. 12, 2017)).

         APPLICABLE LAW

         1. Motion to Amend

         As a preliminary matter, Petitioner labeled his motion as a request for leave to supplement, although he makes clear that he seeks to amend the petition to add a claim. Petitioner explains he requested leave to supplement so that he might be relieved of this Court's local rule which requires the attachment of the entire proposed amended pleading to a motion to amend. See LRCiv 15.1(a). Accordingly, the Court will construe the motion as one to amend.

         A petition for habeas corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. § 2242; see also Rule 12, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (providing that the Federal Rules of Civil Procedure may be applied to habeas petitions to the extent they are not inconsistent with the habeas rules). A court looks to Rule 15 of the Federal Rules of Civil Procedure to address a party's motion to amend a pleading in a habeas corpus action. See James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001).

         Under Rule 15(a), leave to amend shall be freely given “when justice so requires.” Fed.R.Civ.P. 15(a). Courts must review motions to amend in light of the strong policy permitting amendment. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). Factors that may justify denying a motion to amend are undue delay, bad faith or dilatory motive, futility of amendment, undue prejudice to the opposing party, and whether petitioner has previously amended. Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

         Leave to amend may be denied based upon the futility of amendment alone. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). To assess futility, a court necessarily evaluates whether relief may be available on the merits of the proposed claim. See Caswell v. Calderon, 363 F.3d 832, 837-39 (9th Cir. 2004) (conducting a two-part futility analysis reviewing both exhaustion of state court remedies and the merits of the proposed claim). If the proposed claims are untimely, unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile.

         DISCUSSION

         Petitioner seeks to supplement his Petition with a new claim that the jury instruction given in his case was unconstitutional. Petitioner asserts the basis for this claim is the Supreme Court's recent decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016), as recently recognized by the Arizona Supreme Court in State v. Escalante-Orozco, 386 P.3d 798 (Ariz. January 12, 2017). Respondents assert the motion should be denied as futile, because the proposed amendment is untimely. The Court agrees.

         Petitioner's habeas petition is subject to a one-year limitations period under § 2244(d)(1). Typically, this period begins running from the date judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). For purposes of this motion Respondents concede that Petitioner is correct in stating this period expired on July 5, 2016. (See Doc. 16 at 1; Doc. 61 at 5-6.) Application of this period of limitations to Petitioner's ...


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