United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United Slates District Judge.
On
February 26, 2019, the Court issued an order requiring the
parties to file supplemental briefing concerning whether
Johnson is entitled to a stay under Rhines v. Weber,
544 U.S. 269 (2005), as to Claims 14 and 26 in his habeas
petition. (Doc. 29.) The Court has now reviewed the
parties' supplemental briefs (Docs. 30, 31) and
concludes, for the reasons discussed below, that a
Rhines stay is not warranted.
A.
Claim 14
In
Claim 14 of his petition, Johnson alleges that “his
death sentence violates the Fifth, Sixth, Eighth, and
Fourteenth Amendments because the trial court erroneously
instructed his jury that if they did not impose a death
sentence, Johnson might be released on parole.” (Doc.
18 at 258.) He identifies Lynch v. Arizona, 136
S.Ct. 1818 (2016), as the source of new law supporting this
claim.
The
Court concludes the Arizona courts wouldn't allow Johnson
to pursue a Lynch claim in a future proceeding
because Arizona Rule of Civil Procedure 32.1(g) would be
deemed inapplicable. Thus, Johnson's Lynch claim
constitutes a technically exhausted claim that can't give
rise to a Rhines stay.
First,
Arizona courts have construed Rule 32.1(g) as applying only
to cases that represent a “transformative event”
and a “clear” or “sharp break” from
the past. State v. Shrum, 203 P.3d 1175, 1178 (Ariz.
2009); State v. Slemmer, 823 P.2d 41, 49 (Ariz.
1991). Lynch doesn't meet these standards. It
didn't overrule a prior Supreme Court precedent or create
a new rule-it merely applied a 22-year-old precedent
(Simmons v. South Carolina, 512 U.S. 154 (1994)) to
Arizona's sentencing practices. For this reason, several
other judges have already concluded that Lynch
doesn't qualify as a significant change in the law under
Rule 32.1(g). See, e.g., Boggs v. Ryan, 2017 WL
67522, *6 (D. Ariz. 2017) (“Lynch . . . [is]
not [a] significant change[] in the law for purposes of Rule
32.1(g).”); Garcia v. Ryan, 2017 WL 1550419,
*3 (D. Ariz. 2017) (“Lynch did not transform
Arizona law. The holding does not constitute a significant
change in law for purposes of Rule 32.1(g).”);
Garza v. Ryan, 2017 WL 105983, *3 (D. Ariz. 2017)
(“Lynch does not represent a change in the
law. It simply applies existing law to an Arizona case. It is
not a transformative event of the kind described by Arizona
courts in interpreting Rule 32.1(g).”). The Court
agrees with those decisions and reaches the same conclusion
here.
Second,
Arizona courts have further recognized that, even if a case
does represent a “significant change in the law,
” Rule 32.1(g) only applies if the rule announced in
the case is retroactively applicable to cases that were final
at the time of the announcement. State v. Poblete,
260 P.3d 1102, 1105 (Ariz.Ct.App. 2011). See also
Doc. 31 at 2 (Johnson's acknowledgement that “the
Arizona appellate courts treat the question of whether there
is a significant change in the law as distinct from the
separate question whether the change should be applied
retroactively”). This is a difficult standard to meet.
As the U.S. Supreme Court has explained, “a new
constitutional rule of criminal procedure does not apply, as
a general matter, to convictions that were final when the new
rule was announced. [We have] recognized, however, two
categories of rules that are not subject to its general
retroactivity bar. First, courts must give retroactive effect
to new substantive rules of constitutional law. . . . Second,
courts must give retroactive effect to new ‘watershed
rules of criminal procedure' implicating the fundamental
fairness and accuracy of the criminal proceeding.”
Montgomery v. Louisiana, 136 S.Ct. 718, 728 (2016)
(citations and internal quotation marks omitted). See
also Slemmer, 823 P.2d at 49 (“[W]e adopt and
apply the federal retroactivity analysis . . . .”).
These
principles supply an independent reason why Johnson
wouldn't be able to assert a Lynch claim in a
future state-court proceeding under Rule 32.1(g).
Lynch didn't announce a new rule of substantive
law and the procedural rule it applied doesn't amount to
a “watershed” rule of criminal procedure.
See, e.g., Leavitt v. Arave, 383 F.3d 809, 825-26
(9th Cir. 2004) (“The ‘watershed' exception
does not apply to every rule that promotes accuracy and
guarantees due process. Indeed, [since 1989], the Supreme
Court has never found that any rule falls within the
‘watershed' exception despite at least eleven
opportunities to do so.”) (citations omitted). Cf.
Schriro v. Summerlin, 542 U.S. 348, 355-58 (2004)
(concluding the rule announced in Ring was not a
watershed rule of criminal procedure). Thus, Lynch
isn't retroactively applicable. See generally
Garcia, 2017 WL 1550419 at *3 (“Lynch
would not apply retroactively. . . . [T]he Supreme Court
[has] rejected the argument that Simmons represented
a ‘watershed' rule of criminal procedure that would
apply retroactively. Like Simmons, Lynch is
procedural and nonretroactive.”) (citation
omitted).[1]
B.
Claim 26 3
In
Claim 26 of his petition, Johnson alleges that his
“death sentence violates the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution
because his trial and appellate counsel conceded
Johnson's guilt and death-eligibility.” (Doc. 18 at
409.) He identifies McCoy v. Louisiana, 138 S.Ct.
1500 (2018), as the source of new law supporting this claim.
The
Court concludes the Arizona courts wouldn't allow Johnson
to pursue a McCoy claim in a future proceeding
because Arizona Rule of Civil Procedure 32.1(g) would be
deemed inapplicable. Thus, Johnson's McCoy claim
constitutes a technically exhausted claim that can't give
rise to a Rhines stay.
The
Court will note that the question whether McCoy
represents a “significant change in the law” is
closer than the question whether Lynch represents
such a change. In his dissent, Justice Alito argued that the
McCoy majority had adopted a “newly discovered
constitutional right” that “made its first
appearance today.” 138 S.Ct. at 1514, 1518.
Nevertheless, McCoy didn't announce a watershed
rule of criminal procedure, so it doesn't apply
retroactively.[2]
C.
Appointment Of Counsel
Johnson
has asked the Court to authorize his federal habeas counsel
to represent him in state court. The Criminal Justice Act
provides for appointed counsel to represent their client in
“other appropriate motions and procedures.” 18
U.S.C. § 3599(e). In Harbison v. Bell, 556 U.S.
180 (2009), the Supreme Court noted that “a district
court may determine on a case-by-case basis that it is
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