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Milke v. City of Phoenix

United States District Court, D. Arizona

July 25, 2018

Debra Jean Milke, Plaintiff,
v.
City of Phoenix, et al., Defendants.

          ORDER

          HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff and Defendants wish to depose non-party James L. Styers but Styers believes he is entitled to refuse to answer all possible questions based on his Fifth Amendment privilege. Plaintiff and Defendants disagree, arguing the history and current status of Styers' challenges to his convictions and sentences establish he is no longer entitled to invoke the Fifth Amendment privilege. There is no authority definitively resolving the issue, specifically regarding Styers and his present status, but the better reading of existing law is that Styers is not now entitled to invoke the privilege regarding the crimes underlying his convictions.

         BACKGROUND

         Styers' ability to invoke the Fifth Amendment appears to depend on the current status of his post-conviction challenges. Therefore, the Court has looked to the history of his post-conviction challenges in some detail. Only after reciting those events can the focus turn to the attempts to depose Styers in this litigation.

         A. Styers' Post-Conviction Proceedings

         In 1990, Styers was convicted of “first-degree murder, conspiracy to commit first-degree murder, child abuse, and kidnapping.” 2007 WL 86944, at *2 (D. Ariz. Jan. 10, 2007). The court sentenced Styers to death. State v. Styers, 865 P.2d 765, 770 (Ariz. 1993). Styers appealed his convictions and sentences to the Arizona Supreme Court. That court reversed Styers' conviction for child abuse but affirmed his other convictions as well as the death sentence. Id. at 772, 778. The United States Supreme Court denied Styers' petition for writ of certiorari. Styers v. Arizona, 513 U.S. 855 (1994).

         Styers then pursued state post-conviction relief. 2007 WL 86944, at *2. The state courts denied relief and, on December 16, 1998, Styers filed a federal petition for a writ of habeas corpus. Id. In those proceedings Styers asserted a total of nine claims. Id. at *1. In an order issued relatively early in those proceedings, the district court determined four claims “were procedurally barred and [one claim] lacked merit.” Id. The district court later analyzed the remaining five claims and concluded Styers was not entitled to relief. Styers appealed to the Ninth Circuit.

         The Ninth Circuit “affirm[ed] the district court on all counts, except Styers' claim that the Arizona Supreme Court failed to fulfill its obligations under Clemons v. Mississippi, ” regarding that court's independent weighing of the aggravating and mitigating circumstances. Styers v. Schriro, 547 F.3d 1026, 1027-27 (9th Cir. 2008). The Ninth Circuit remanded to the district court “with instructions to grant the writ with respect to Styers' sentence unless the state, within a reasonable period of time, either corrects the constitutional error in petitioner's death sentence or vacates the sentence and imposes a less sentence.” Id. at 1036. The State of Arizona filed an unsuccessful petition for writ of certiorari. Ryan v. Styers, 558 U.S. 932 (2009).

         Upon remand, “the district court entered judgment granting the writ of habeas corpus unless the State of Arizona, within 120 days of the judgment, ‘initiate[d] proceedings either to correct the constitutional error in Petitioner's death sentence or to vacate the sentence and impose a lesser sentence consistent with the law.'” Styers v. Ryan, 2012 WL 3062799, at *1 (D. Ariz. July 26, 2012). The Supreme Court of Arizona received briefing from both sides and concluded it was not necessary to send the case for a full resentencing. Rather, the Arizona Supreme Court concluded it could remedy the error identified by the Ninth Circuit by “conduct[ing] a new independent review of [Styer's] capital sentence.” Id. at *2. The Arizona Supreme Court conducted that independent review and held the death sentence was appropriate. Id. Styers filed an unsuccessful petition for a writ of certiorari regarding the Arizona Supreme Court's decision. Styers v. Arizona, 565 U.S. 994 (2011). Styers then filed a motion in his federal habeas case requesting an “unconditional writ releasing him from his death sentence, ” arguing the Arizona Supreme Court had failed to comply with the federal court's instructions. 2012 WL 3062799, at *2.

         The district court denied Styers' request for an unconditional writ. The district court held the relief ordered by the Ninth Circuit “gave the State the opportunity to cure the constitutional defect” but did not specify precisely how it must do so. Id. The Arizona Supreme Court's “new independent review of Petitioner's capital sentence . . . remedied the constitutional infirmity” the Ninth Circuit had identified. Id. at *6. Therefore, Styers was not entitled to any additional relief. Styers appealed the district court's decision.

         Shortly after the district court's decision denying Styers' request for an unconditional writ, he filed a separate petition in federal court. CV-12-2332-PHX-JAT. That petition raised eight grounds for relief. Styers v. Ryan, 2013 WL 1775981, at *2 (D. Ariz. April 25, 2013). Some of those grounds addressed issues that were raised or could have been raised in Styers' earlier petition. But some of the grounds addressed aspects of the Arizona Supreme Court's reweighing. When reviewing that second petition, the district court concluded it could not consider any of the grounds Styers had raised in his earlier petition nor could the court consider any of the grounds Styers could have raised earlier. The district court concluded, however, that it could entertain arguments based on the “new independent sentencing review.” Id. at *5. The district court decided to stay all those claims based on the pending appeal involving the earlier petition.

         On December 30, 2015, the Ninth Circuit issued its opinion regarding Styer's earlier petition. In that opinion, the Ninth Circuit addressed whether, after the writ had been granted, the Arizona Supreme Court was entitled to conduct a new independent sentencing review or if the case should have been sent for an entirely new sentencing. Styers v. Ryan, 811 F.3d 292, 294 (9th Cir. 2015). The Ninth Circuit concluded the Arizona Supreme Court's decision that it could correct the error merely through a new independent sentencing review was not “contrary to, [nor did it] involve[] an unreasonable application of, clearly established federal law as determine by the Supreme Court of the United States.” Id. at 297. Moreover, the Arizona Supreme Court's new independent sentencing review complied with all constitutional requirements. Therefore, Styers was not entitled to relief. Styers filed an unsuccessful petition for writ of certiorari. Styers v. Ryan, 137 S.Ct. 1332 (2017).

         After the petition for writ of certiorari was denied in 2017, the district court hearing Styers' second federal petition issued its ruling. That court concluded the only grounds for relief that were still pending involved the propriety of the Arizona Supreme Court's independent sentencing review. Because the Ninth Circuit had addressed those grounds in its 2015 decision, the district court found the grounds “moot.” Styers v. Ryan, 2017 WL 3641454, at *1 (D. Ariz. Aug. 24, 2017). The district court then denied Styers' request to reconsider its refusal to address the other grounds, including grounds involving Styers' convictions. The district court denied that request. Finally, the district court denied Styers' request for a certificate of appealability. CV-12-2332-PHX-JAT, Doc. 36. Styers subsequently requested a certificate of appealability from the Ninth Circuit. That request remains pending. Ninth Circuit Case No. 17-17356, Doc. 4 (filed January 17, 2018).

         Based on this extensive history, Styers' convictions and death sentence have followed slightly differently post-conviction paths. Regarding his convictions, they have been affirmed during the following proceedings: 1) a direct appeal to the Arizona Supreme Court; 2) an unsuccessful petition for writ of certiorari to the United States Supreme Court; 3) state post-conviction proceedings; 4) federal district court; 5) Ninth Circuit review; 6) an unsuccessful petition for writ of certiorari to the ...


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