Armstrong v. Ryan et al

Filing 68

ORDER denying 58 Petitioner's Motion for Leave to Supplement the Petition for Writ of Habeas Corpus. Signed by Judge Rosemary Marquez on 9/7/2017. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shad Daniel Armstrong,
Petitioner,

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v.

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No. CV-15-00358-TUC-RM
DEATH PENALTY CASE

Charles L. Ryan, et al.,

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ORDER

Respondents.

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Pending before the Court is Petitioner Shad Armstrong’s motion for leave to

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supplement his Petition for Writ of Habeas Corpus pursuant to Federal Rules of Civil

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Procedure 15(a)(2) and (d). (Doc. 58.) Armstrong is an Arizona death row prisoner. He

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filed a habeas petition on July 1, 2016. (Doc. 20.) In the pending motion he seeks leave to

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amend his Petition to include a claim alleging that a jury instruction given during his

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sentencing proceeding was unconstitutional under the Supreme Court’s holding in

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Simmons v. South Carolina, 512 U.S. 154 (1994). (See Docs. 58, 59.) Respondents filed a

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response in opposition to the requested amendment, and Petitioner filed a reply. (Docs.

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61, 63.) For the reasons set forth below, the motion is denied.

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BACKGROUND

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In March 2000, a Pima County jury convicted Petitioner of murdering, and

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conspiring to murder, his sister and her fiancé. The trial judge imposed death sentences

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for each murder. In 2006, following the Supreme Court’s decision in Ring v. Arizona, 536

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U.S. 584 (2002), a jury re-sentenced Petitioner to death for each murder. State v.

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Armstrong, 189 P.3d 378, 383 (Ariz. 2008). The jury was instructed: “If your verdict is

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that the defendant should be sentenced to life, the defendant will not be sentenced to

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death, and the Court will sentence the defendant to either life without the possibility of

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release until 25 calendar years in prison are served or natural life which means the

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defendant will never be released from prison.” RT 11/14/06 at 106.1 In proposed Claim

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Nineteen, Petitioner contends that the Arizona Supreme Court, recognizing the Supreme

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Court’s recent decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016) (per curium), found

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this precise instruction to be unconstitutional and seeks amendment of his petition to add

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this claim. (See Doc. 59) (citing State v. Escalante-Orozco, 396 P.3d 798, 828–30 (Ariz.

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Jan. 12, 2017)).
APPLICABLE LAW

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Motion to Amend

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As a preliminary matter, Petitioner labeled his motion as a request for leave to

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supplement, although he makes clear that he seeks to amend the petition to add a claim.

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Petitioner explains he requested leave to supplement so that he might be relieved of this

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Court’s local rule which requires the attachment of the entire proposed amended pleading

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to a motion to amend. See LRCiv 15.1(a). Accordingly, the Court will construe the

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motion as one to amend.

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A petition for habeas corpus may be amended pursuant to the Federal Rules of

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Civil Procedure. 28 U.S.C. § 2242; see also Rule 12, Rules Governing § 2254 Cases, 28

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U.S.C. foll. § 2254 (providing that the Federal Rules of Civil Procedure may be applied

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to habeas petitions to the extent they are not inconsistent with the habeas rules). A court

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looks to Rule 15 of the Federal Rules of Civil Procedure to address a party’s motion to

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amend a pleading in a habeas corpus action. See James v. Pliler, 269 F.3d 1124, 1126

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(9th Cir. 2001).

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Under Rule 15(a), leave to amend shall be freely given “when justice so requires.”

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Fed. R. Civ. P. 15(a). Courts must review motions to amend in light of the strong policy

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permitting amendment. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th

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“RT” refers to the reporter’s transcripts from Petitioner’s state court proceedings.
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Cir. 1986). Factors that may justify denying a motion to amend are undue delay, bad faith

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or dilatory motive, futility of amendment, undue prejudice to the opposing party, and

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whether petitioner has previously amended. Foman v. Davis, 371 U.S. 178, 182 (1962);

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Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

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Leave to amend may be denied based upon the futility of amendment alone. See

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Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). To assess futility, a court

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necessarily evaluates whether relief may be available on the merits of the proposed claim.

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See Caswell v. Calderon, 363 F.3d 832, 837–39 (9th Cir. 2004) (conducting a two-part

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futility analysis reviewing both exhaustion of state court remedies and the merits of the

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proposed claim). If the proposed claims are untimely, unexhausted, or otherwise fail as a

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matter of law, amendment should be denied as futile.

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DISCUSSION

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Petitioner seeks to supplement his Petition with a new claim that the jury

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instruction given in his case was unconstitutional. Petitioner asserts the basis for this

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claim is the Supreme Court’s recent decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016),

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as recently recognized by the Arizona Supreme Court in State v. Escalante-Orozco, 386

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P.3d 798 (Ariz. January 12, 2017). Respondents assert the motion should be denied as

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futile, because the proposed amendment is untimely. The Court agrees.

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Petitioner’s habeas petition is subject to a one-year limitations period under §

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2244(d)(1). Typically, this period begins running from the date judgment becomes final.

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28 U.S.C. § 2244(d)(1)(A). For purposes of this motion Respondents concede that

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Petitioner is correct in stating this period expired on July 5, 2016. (See Doc. 16 at 1; Doc.

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61 at 5-6.) Application of this period of limitations to Petitioner’s proposed claim, filed

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on May 24, 2017, results in a finding that the claim is untimely by a period of over ten

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months.

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Petitioner argues that the claim is timely because it was filed less than a year after

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the Supreme Court issued its decision in Lynch. The Court therefore considers whether

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the Supreme Court’s decision in Lynch, decided on May 31, 2016, is a triggering event

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under any of the possible alternative start dates for the limitations period, including: (1)

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the date on which a State-created impediment to filing an application is removed; (2) the

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date on which a constitutional right asserted by petitioner was initially recognized, and

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made retroactive to cases on collateral review; or (3) the date on which the factual

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predicate of the claim could have been discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1)(B)–(D).

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In Lynch, 136 S. Ct. 1818, the Supreme Court applied Simmons v. South Carolina,

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512 U.S. 154 (1994), to a capital sentencing in Arizona. Simmons held that when future

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dangerousness is an issue in a capital sentencing determination, the defendant has a due

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process right to require that his sentencing jury be informed of his ineligibility for parole.

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512 U.S. at 171. The Supreme Court’s decision in Lynch is not a triggering event under

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28 U.S.C. § 2244(d)(1)(C), because it did not announce a new rule, and does not apply

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retroactively.2 In O’Dell v. Netherland, 521 U.S. 151, 167 (1997), the Supreme Court

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rejected the argument that Simmons represented a watershed rule of criminal procedure

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that would apply retroactively. Like Simmons, Lynch is procedural and non-retroactive,

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and does not serve to initiate a new limitations period for Petitioner’s Simmons claim.

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Petitioner lends supports to this conclusion by arguing in proposed Claim Nineteen that

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“Simmons and its progeny all clearly established prior to Armstrong’s re-trial in 2006

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that the instruction was unconstitutional.” (Doc. 59 at 4.)

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Petitioner contends that, under the Supreme Court’s holding in Griffith v.

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Kentucky, 479 U.S. 314 (1987), he is entitled to the application of Simmons, which was

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decided several years before Petitioner’s conviction became final. In Griffith, the

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Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be

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applied retroactively to all cases, state or federal, pending on direct review or not yet

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final, with no exception for cases in which the new rule constitutes a ‘clear break’ with

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Contrary to Petitioner’s assertion, these are not contradictory claims. The Court
finds that Lynch did not announce a new constitutional rule, but even if the Court were to
assume for the sake of argument that Lynch did announce a new constitutional rule, it has
not been made retroactive to cases on collateral review.
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the past.” Id. at 328. Petitioner’s argument, however, strays from the issue presently

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before the Court. The State does not argue, and the Court does not find, that Simmons is

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inapplicable to Petitioner. The crucial consideration is whether Petitioner’s claim is

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timely. Petitioner cannot rely on the date of the Supreme Court’s decision in Lynch as an

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alternative trigger date for the limitations period because Lynch does not announce a new

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constitutional right, and, even if it had, does not apply retroactively.

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Petitioner states that “it was not necessarily the legal unavailability but the factual

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unavailability of Armstrong’s claim that was the impediment to raising it during prior

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state proceedings.” (Doc. 63 at 7.) He also asserts, though in the context of his procedural

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default argument, that his claim was “factually unavailable” until the Arizona Supreme

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Court’s decision in Escalante-Orozco because prior state court decisions had held that the

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jury instruction at issue was correct because release into the community was possible. (Id.

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at 8-9.) The Court construes these assertions liberally as arguments in support of an

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alternative limitations period start date under either 28 U.S.C. § 2244(d)(1)(B) (“the date

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on which the impediment to filing an application created by State action in violation of

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the United States is removed”) or (d)(1)(D) (“the date on which the factual predicate of

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the claim or claims presented could have been discovered through the exercise of

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reasonable diligence”), but finds no support for either alternative limitations period in this

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case.

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A “state's determination of its own substantive law in a way that leaves a convict

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with no meritorious federal claim” does not constitute an “impediment” to filing a habeas

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petition under § 2244(d)(1)(B), nor is “a change in (or clarification of) state law, by a

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state court. . . a ‘factual predicate’” under § 2244(d)(1)(D). See Shannon v. Newland,

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410 F.3d 1083, 1087–1088 (9th Cir. 2005). Thus, Petitioner cannot rely on the Arizona

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Supreme Court’s decision in Escalante-Orozco as a triggering date under either

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alternative start date. The reasoning in Shannon applies with equal force to Petitioner’s

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suggestion that the decision in Lynch—as a change in or clarification of federal law—

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could qualify as a “factual predicate,” because such an interpretation would render the

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term “factual” meaningless. See id. at 1088. The circumstances under which a state-court

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decision may serve as a “factual predicate,” such as instances in which “the state-court

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decision in question is a decision in the petitioner’s own case,” are not present here. See

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id. at 1088 (citing Johnson v. United States, 544 U.S. 295 (2005)).

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The Court finds the claim untimely under the limitations period described in

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section 2244(d)(1). Petitioner is permitted to amend his petition now only if the new

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claim “relates back” to the original petition. See Mayle v. Felix, 545 U.S. 644, 650

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(2005). A claim does not relate back “when it asserts a new ground for relief supported

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by facts that differ in both time and type from those the original pleading set forth.” Id.

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Petitioner does not advance any argument that Claim Nineteen relates to any properly

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filed and currently pending claim in his petition, and a review of the petition reveals that

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Petitioner’s new claim differs in both time and type from any claim in his petition. (See

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Doc. 20.)
CONCLUSION

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Because Petitioner’s claim is untimely and does not relate back to a properly filed

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and currently pending claim, any attempt to amend the habeas petition to include the

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claim would be futile. Because the Court finds it would be “nothing more than an

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exercise in futility,” to allow amendment of the petition, the Court does not reach the

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merits or procedural status of the claim, and does not consider the other factors that might

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justify denial of the motion to amend, such as undue delay, bad faith or dilatory motive,

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and undue prejudice. See Bonin, 59 F.3d at 845.

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Accordingly,

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IT IS HEREBY ORDERED Petitioner’s Motion for Leave to Supplement the

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Petition for Writ of Habeas Corpus (Doc. 58) is DENIED.
Dated this 7th day of September, 2017.

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