Johnson v. Ryan

          ORDER

          Dominic W. Lanza United Slates District Judge

         DEATH PENALTY CASE

         Pending before the Court is Petitioner Ruben Johnson's motion for a declaratory judgment concerning the applicability of the Arizona Victims' Bill of Rights (“AVBR”) in this capital habeas proceeding. (Doc. 11.) As explained below, the motion will be denied.

         BACKGROUND

         A. The Underlying Crime

         The following factual summary is derived from the Arizona Supreme Court's decision in State v. Johnson, 133 P.3d 735 (Ariz. 2006). On November 7, 2000, Johnson and a fellow gang member robbed a massage parlor. Id. at 738-39. During the robbery, they encountered a witness named Stephanie Smith. Id. Although Johnson escaped, his partner was caught by the police. Id. Johnson then learned, through a court employee, that Smith was scheduled to testify at his partner's upcoming preliminary hearing. Id. In response, Johnson pressured an acquaintance to reveal Smith's home address. Id.

         At around 1:00 a.m. on November 15, 2000-only a few hours before the preliminary hearing was scheduled to begin-Johnson and a different gang member went to Smith's house. Id. When they arrived, there were four people inside: (1) Smith, (2) Smith's four-year-old son, (3) a man named Mike Solo, and (4) a man named Leonard Justice. Id. The latter two were visitors who did not reside with Smith. Id. When Solo heard a dog barking behind the house, he went outside. Id. There, a black male put a gun to Solo's head, threatened to kill him, and asked who else was in the house. Id. Next, the gunman pushed Solo into the house and then told him to leave. Id. Solo hurried to his car and drove away. Id. In the meantime, Justice-who had seen what was happening through the back window of the house-called 911 and handed the phone to Smith so she could provide her address to the dispatcher. Id. When Smith and Justice saw Johnson enter the home, they both tried to hide-Justice hid in the bathroom and Smith went to a different room. Id. Johnson found Smith and shot her in the head, killing her. Id.

         Johnson fled after killing Smith. Id. Two days later, Johnson showed a newspaper article about the murder to an acquaintance, admitted he was the unnamed suspect mentioned in the story, and explained that he'd killed Smith because she was going to testify against “his cuz or one of his homies.” Id.

         B. The Underlying Proceedings

         Johnson was indicted by an Arizona grand jury for the crimes of first-degree murder, assisting a criminal syndicate or street gang, first-degree burglary, and armed robbery. Johnson, 133 P.3d at 738.

         In November 2001, following a jury trial, Johnson was convicted on all four counts. Id. “At the conclusion of the aggravation phase of the sentencing proceeding, a different jury found three aggravating factors proved beyond a reasonable doubt: (1) Johnson was previously convicted of a serious offense, (2) Johnson knowingly created a grave risk of death to another person in addition to the person murdered, (3) Johnson committed the offense in an especially heinous and depraved manner. In the penalty phase, that same jury determined that Johnson should receive the death sentence for the charge of first degree murder. The trial court sentenced him to death for the murder and to consecutive, aggravated terms on the non-capital charges.” Id. (citations omitted).

         In May 2006, the Arizona Supreme Court affirmed Johnson's conviction and sentence. Id. at 751.

         In November 2006, the United States Supreme Court denied certiorari. Johnson v. Arizona, 549 U.S. 1022 (2006).

         C. The Arizona ...