United States District Court, D. Arizona
Dominic U. Lanza United Slates District Judge
before the Court is Petitioner Ruben Johnson's motion for
stay and abeyance. (Doc. 23.) Johnson seeks a stay under
Rhines v. Weber, 544 U.S. 269 (2005), so he can
return to state court to challenge his conviction. He also
seeks permission for his federal habeas counsel to appear on
his behalf in state court. Respondents filed a response and
Johnson filed a reply. (Docs. 24, 27.) As explained below,
the Court will order the parties to file supplemental
briefing on whether Johnson is entitled to a Rhines
stay with respect to Claims 14 and 26 in his habeas petition.
The Underlying Crime
following factual summary is derived from the Arizona Supreme
Court's decision in State v. Johnson, 133 P.3d
735 (Ariz. 2006).
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.
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.
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 Trial
In February 2001, Johnson was indicted in Maricopa County
Superior Court on the charges of first-degree murder,
assisting a criminal syndicate/criminal street gang,
first-degree burglary, and armed robbery. (Doc. 18 at 38-39.)
November 2001, following a thirteen-day trial, Johnson was
convicted on all four counts. (Id. at 39.)
“Following the guilt[y] verdicts as per the 2001
statute, the jury was dismissed in anticipation of a
sentencing phase decided by the trial judge. The guilt-phase
jury did not have to find the presence or absence of
aggravating factors.” (Id.)
2002, before the start of Johnson's penalty phase, the
U.S. Supreme Court decided Ring v. Arizona, 536 U.S.
November 2003, Johnson's sentencing hearing-which, per
Ring, was conducted before a new jury-began. (Doc.
18 at 40.) The jury found three aggravating circumstances and
concluded that Johnson should receive a death sentence.
The Direct Appeal
January 2005, Johnson's counsel filed an opening brief in
his direct appeal to the Arizona Supreme Court. (Doc. 18 at
40-41.) The brief's table of contents stated that the
following seven issues were being raised for review:
(1) The trial court's failure to sever Count II from the
remaining counts deprived Johnson of a fair trial;
(2) The penalty-phase jury instructions concerning aggravated
circumstances provided no guidance and promoted unfettered
(3) The trial court abused its discretion by allowing the
prosecution to introduce gang evidence during the penalty
(4) The trial court erred in failing to permit defense
counsel to voir dire the penalty-phase jurors concerning
specific mitigating factors;
(5) The trial court abused its discretion by allowing the
prosecution to introduce a tape recording of Johnson's
interview with a police detective;
(6) The trial court's failure to provide certain
mitigating-factor instructions during the penalty phase
deprived Johnson of a fair sentencing; and
(7) “Issues presented for purposes of federal
review.”(Doc. 19-3 at 3-4.)
2006, the Arizona Supreme Court affirmed. (Doc. 18 at 41.)
November 2006, the U.S. Supreme Court denied certiorari.
Johnson v. Arizona, 127 S.Ct. 559 (2006).
The PCR Proceedings
November 2011, Johnson submitted his initial PCR petition.
(Doc. 18 at 41.)
August 2012, Johnson filed an amended PCR petition.
August 2014, after obtaining permission to withdraw his
previous petition, Johnson filed a new PCR petition.
(Id. at 42.) Johnson asserts that it raised the