Fitzgerald v. Thornell ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Vincent Fitzgerald, No. CV-19-05219-PHX-MTL 10 Petitioner, DEATH PENALTY CASE 11 v. ORDER 12 Ryan Thornell1, et al., 13 Respondents. 14 15 In his habeas petition, Fitzgerald claims two errors under Simmons v. South 16 Carolina, 512 U.S. 154 (1994). (Docs. 21 at 265–77 and 35 at 270–86.) In Simmons, the 17 Supreme Court held that the accused has a due process right to inform the jury that he is 18 ineligible for parole in deciding whether to sentence him to death. 512 U.S. at 156. The 19 Supreme Court later reversed the Arizona Supreme Court’s decision that Simmons did not 20 apply to another death-sentenced prisoner in Lynch v. Arizona, 578 U.S. 613 (2016) (per 21 curiam). Respondents filed their answer to Fitzgerald’s petition, and the Court stayed the 22 deadline for Fitzgerald’s reply “until 30 days after” the United States Supreme Court’s 23 decision in Cruz v. Arizona (Cruz II), 142 S. Ct. 1412 (U.S. Mar. 28, 2022) (Mem.), in 24 which the Supreme Court granted certiorari to consider the Arizona Supreme Court’s 25 decision that Lynch was not a significant change in the law that applied to other death- 26 sentenced petitioners. (Docs. 52 and 56.) This Court reasoned that a decision in Cruz II 27 28 1 Under Federal Rule of Civil Procedure 25(d), Ryan Thornell is automatically substituted for Respondent David Shinn as his successor in office. 1 “impacts” Fitzgerald’s Simmons claims. (Doc. 56 at 3.) 2 On February 22, 2023, the United States Supreme Court issued its decision in Cruz 3 II, reversing the Arizona Supreme Court’s holding that Lynch “was not a significant change 4 in the law for purposes of [Arizona Rule of Criminal Procedure] 32.1(g)”2 and that the 5 Arizona Supreme Court’s decision therefore did not rest on an adequate and independent 6 state-law ground barring a successive petition for postconviction relief. Cruz II, 143 S. Ct. 7 650, 655 (Feb. 22, 2023). The Supreme Court thus vacated the Arizona Supreme Court’s 8 judgment and remanded the case. Id. at 662. The Arizona Supreme Court ordered the 9 parties to file supplemental briefs on the merits of Cruz’s Simmons claims. (Doc. 57-1 at 10 2, Order in State v. Cruz (Cruz I), No. CR-17-0567-PC.) 11 Fitzgerald now asks this Court to extend the stay of the deadline for his reply pending a decision in Cruz. (Doc. 57.) Respondents do not oppose the request. (Id. at 2.) 12 Because a decision in that case may bear on Fitzgerald’s Simmons habeas claims, this Court 13 will grant Fitzgerald’s request. 14 15 Accordingly, 16 IT IS ORDERED granting Fitzgerald’s Unopposed Motion to Extend Stay (Doc. 17 57). 18 IT IS FURTHER ORDERED staying the deadline for Fitzgerald to file a reply to 19 Respondents’ Answer pending the Arizona Supreme Court’s decision on remand in Cruz 20 I. 21 IT IS FURTHER ORDERED that starting from this Order’s filing date, the parties 22 shall file a joint report every 90 days on the status of Cruz I. 23 … 24 … 25 … 26 2 Rule 32.1(g) allows a defendant “to bring a successive petition [for postconviction relief] 27 if ‘there has been a significant change in the law that, if applicable to the defendant's case, 28 would probably overturn the defendant’s judgment or sentence.’” Cruz II, 143 S. Ct. at 655 (quoting Ariz. R. Crim. P. 32.1(g) (Cum. Supp. 2022)). 1 IT IS FINALLY ORDERED that within 14 days of the decision on remand in 2|| Cruz I, Fitzgerald shall file a status report, proposing a briefing schedule for this federal || habeas case. Fitzgerald shall include Respondents’ position on this proposal. 4 Dated this 10th day of March, 2023. 5 WM chal T. FH bundle Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-