United States District Court, D. Arizona
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE
Gunches, an Arizona prisoner sentenced to death, filed a
pro se Notice of Waiver of Federal Habeas Review
(“Notice”) (Doc. 1), stating his intention not to
file a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. He requests an expedited hearing on the
Notice and asks the Court to allow briefs to be filed by
amicus curiae. For the reasons stated below, the Court
declines Gunches's requests for further briefing and a
hearing and dismisses the Notice for lack of jurisdiction.
courts have an “independent obligation to examine their
own jurisdiction.” FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990), and may dismiss for
lack of jurisdiction “at any time that such lack
appears, and on its own motion.” Harmon v. Superior
Court, 307 F.2d 796, 797 (9th Cir. 1962). A party
alleging federal jurisdiction must satisfy a “threshold
requirement imposed by Art. III of the Constitution that
those who seek to invoke the power of federal courts must
allege an actual case or controversy.” O'Shea
v. Littleton, 414 U.S. 488, 493 (1974).
element of the case-or-controversy requirement' is that
plaintiffs ‘must establish that they have standing to
sue.'” Clapper v. Amnesty Int'l USA,
568 U.S. 398, 408 (2013) (quoting Raines v. Byrd,
521 U.S. 811, 818 (1997)). “‘The party invoking
federal jurisdiction bears the burden of establishing'
standing.” Id. at 411-12 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)). A
plaintiff who invokes federal jurisdiction must show, at a
minimum: (1) an injury in fact via an invasion of a legally
protected interest that is concrete, particularized, and
actual or imminent, rather than conjectural or hypothetical,
(2) fairly traceable to the defendant's conduct, and (3)
redressable by a favorable judicial decision. Spokeo,
Inc. v. Robins, - U.S. -, 136 S.Ct. 1540, 1547 (2016)
(citing Lujan, 504 U.S. at 560-61). A
plaintiff's standing to sue is determined based on the
facts that exist at the time of the complaint. Clark v.
City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001)
(citing Lujan, 504 U.S. at 569 n.4).
se pleadings must be liberally construed in the
interests of justice. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (pro se pleadings are held to
“less stringent standards than formal pleadings drafted
by lawyers . . . .”); Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (courts must “continue to
construe pro se filings liberally . . . .”);
Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir.
1975) (“Pleadings should be liberally construed in the
interests of justice, particularly when a pleader is not
learned in the law.”). A district court may dismiss a
complaint for lack of jurisdiction before issuing a summons
or following other procedural requirements, Franklin v.
State of Or., State Welfare Division, 662 F.2d 1337,
1342 (9th Cir.1981) (citing Loux v. Rhay, 375 F.2d
55, 58 (9th Cir. 1967)), but only if the lack of jurisdiction
appears on the face of the complaint and is obviously not
curable, Harmon, 307 F.2d at 796.
purposes of deciding whether Gunches has established federal
jurisdiction, the Court accepts the factual allegations in
the Notice as true. Gunches refers to the factual and
procedural history of his case as set forth in State v.
Gunches, 225 Ariz. 22 (2010) (“Gunches
I”), and State v. Gunches, 240 Ariz. 198
(2016) (“Gunches II”), and in Exhibit 1
of the Notice. The following summary is taken from these
was charged with first degree murder and kidnapping in late
2002. After the trial court found Gunches competent to stand
trial and to waive his right to counsel, Gunches chose to
represent himself. He later pleaded guilty to both counts.
During the aggravation phase, Gunches stipulated that he had
been convicted of a serious offense (attempted murder), which
is an aggravating circumstance under A.R.S. §
13-751(F)(2). Gunches presented virtually no mitigation
evidence in the penalty phase, but he did request leniency in
allocution. The jury determined that he should be sentenced
direct appeal, the Arizona Supreme court affirmed
Gunches's convictions and the kidnapping sentence, but,
after finding sentencing error, remanded for a new
penalty-phase proceeding. As before, Gunches waived his right
to counsel and did not present any mitigation evidence, and,
unlike the previous sentencing, he did not request leniency
in allocution. Again, the jury determined that Gunches should
be sentenced to death.
Arizona Supreme Court found no error in allowing Gunches to
represent himself at trial and sentencing and affirmed the
conviction and sentences. Gunches also represented himself in
his first post-conviction relief proceeding, which he
ultimately waived. Subsequently, the Arizona Supreme Court
declined jurisdiction over a petition for special action
filed by his advisory counsel challenging Gunches's
competency to waive his right to state post-conviction
review. See Arizona Supreme Court Minutes, September
25, 2018, Gunches v. Hon.Myers/State ex rel
Brnovich, CV 18-0186-SA; see also (Doc. 1, Ex.
asserts that no other party has legal standing to object to
his waiver of federal review of his state conviction and
sentences. Based on the facts alleged in the Notice, the
Court finds that Gunches has failed to establish a sufficient
and immediate injury traceable to the defendant's conduct
that is redressable by a decision of the Court. Thus, the
Court concludes that Gunches has failed to establish federal
the Notice fails to allege any “threatened or actual
injury resulting from [a] putatively illegal action.”
See O'Shea, 414 U.S. at 493-94. “Abstract
injury is not enough. It must be alleged that the plaintiff
‘has sustained or is immediately in danger of
sustaining some direct injury.'” Id. at
494 (citation omitted). “The injury or threat of injury
must be both ‘real and immediate,' not
‘conjectural' or ‘hypothetical.'”
Id. (citations omitted). To the extent the Notice is
construed as an allegation that Gunches will be injured if he
is not allowed to waive his right to file a habeas petition,
Gunches's assertions that he will not be filing a ...