Johnson v. Ryan

          ORDER

          Dominic U. Lanza United Slates District Judge

         Pending 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.

         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 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.)

         In 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.)

         In June 2002, before the start of Johnson's penalty phase, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002).

         In 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. (Id.)

         C. The Direct Appeal

         In 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 discretion;

(3) The trial court abused its discretion by allowing the prosecution to introduce gang evidence during the penalty phase;

(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.”^[1](Doc. 19-3 at 3-4.)

         In May 2006, the Arizona Supreme Court affirmed. (Doc. 18 at 41.)

         In November 2006, the U.S. Supreme Court denied certiorari. Johnson v. Arizona, 127 S.Ct. 559 (2006).

         D. The PCR Proceedings

         In November 2011, Johnson submitted his initial PCR petition. (Doc. 18 at 41.)

         In August 2012, Johnson filed an amended PCR petition. (Id.)

         In 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 ...